In mediation, the neutral mediator has no power to decide the case.  Rather, his job is to meet with the parties – both separately and together – in an effort to increase communication and understanding between them so that they can fashion their own resolution.  There are two general styles of mediators – the facilitative type (“touchy-feely”) and the distributive type (“head-knocking”). 

A facilitative mediator will encourage communication by asking each side open-ended questions.  He will try to understand each party’s underlying interests and concerns and creatively help them find common ground so they can reach a settlement.  Often, of course, money becomes a stumbling block.  So the mediator will think outside the box to suggest remedies that don’t necessarily involve just the defendant’s payment of money to the plaintiff. 

In an employment case, for example, the defendant employer could agree to rehire the plaintiff employee as a consultant or a temp.  In a copyright infringement case, the defendant publisher could agree to print and distribute at no charge a new book written by the plaintiff author.  A judge or jury would not be able to order these kinds of creative solutions in a lawsuit.

In contrast, a distributive mediator is usually a former judge who is accustomed to deciding things himself.  He may offer his opinion by telling each side (separately, of course) the weaknesses of its case, the strengths of the other side’s case and the risks and negative consequences of going forward with a litigation (i.e., give each party a reality check).  This often softens up the parties and makes them more amenable to a compromise, which the mediator himself might propose.

Here at Limacs, Roy Klein combines these two styles, using both facilitative and distributive techniques to help the parties resolve their conflict.

The advantage of mediation is that the parties remain in control of the outcome.  They are not obligated to settle.  Rather, if either side is unhappy with the progress of the negotiations, he is free to walk away and pursue litigation.  There really is no disadvantage, other than the time and expense that may be required.  If the process works, of course, the parties are saving the even greater time and expense they otherwise would have incurred to litigate the dispute.

But, you may be thinking, if the case doesn’t settle and ends up in litigation, each party will use against the other all the concessions he made during the mediation.  Wow!  We’re glad you’re paying attention.  Actually, to encourage communication during mediation, the process is completely confidential.  Nothing said there can be used in a lawsuit.  The mediator can’t be called as a witness for either party.  In fact, Roy Klein will discard any notes he may have taken as soon as it’s over.  So, have no fear.  Feel free to mediate openly, to your heart’s content.