The mediator does not have the power to impose a resolution or make rulings. Rather, the mediator guides the parties towards resolution , thereby avoiding the cost in time, money, and potential exposure of a court proceeding or arbitration. Through a variety of techniques including sessions with all parties and separate caucuses with each party, the mediator helps both sides define the issues clearly, understand each other's position, and move closer to resolution.
Mediation differs dramatically from adjudication and arbitration. In those processes, a judge or arbitrator hears evidence relating to a particular conflict and then determines who "wins" or "loses" based upon the applicable law. In mediation, the parties control the outcome, and the potential exists for an agreed-upon “win-win” solution which preserves the essential interests of all of the disputants in a confidential setting.
There are generally two styles of mediation, facilitative and evaluative, with variations of both. In facilitative mediation, the mediator structures a process to assist the parties in reaching a mutually agreeable resolution. The mediator asks questions, validates and normalizes parties' points of view, searches for interests behind the positions taken by parties, and assists the parties in finding and analyzing options for resolution. The facilitative mediator does not make recommendations to the parties, give his or her own advice or opinion as to the outcome of the case, or predict what a court would do in the case. The mediator is in charge of the process, while the parties are in charge of the outcome.
Evaluative mediation is a process modeled on settlement conferences held by judges. An evaluative mediator assists the parties in reaching resolution by pointing out the weaknesses of each side’s case and predicting what a judge, jury or arbitration panel might do. Evaluative mediators are concerned with the legal rights of the parties rather than needs and interests, and evaluate based on legal concepts of fairness. The evaluative mediator structures the process, and directly influences the outcome of mediation.
Carlile Patchen & Murphy has lawyers skilled in acting as evaluative and facilitative mediators with track records that demonstrate their effectiveness. They also have the background and special training that is sometimes required for specific kinds of cases.
Our lawyers are regularly called upon to act as mediators in cases involving:
- Employment Law
- Family Law
- Business Disputes
- Securities Industry Disputes
- Probate or Estate Disputes