• March 03, 2021
  • Blog

If you have decided to mediate your dispute you now have an important decision to make—in what sort of Mediation should you engage? There are two main approaches to business Mediation in Santa Monica, Venice and Los Angeles—Evaluative Mediation and Facilitative Mediation. What are these two types of Mediation, how do they differ and which is right for your Dispute?

To answer these questions, you should start by asking why are you mediating in the first place? You have been listening to your lawyer tell you the strengths and weaknesses of your case for months, perhaps even years. You have been listening to the other side do likewise. If you are involved in the case, you have read briefs, been deposed, attended depositions, etc. You know the strengths and weaknesses. You have also been told ad nauseam that there are no guarantees in litigation.

If you are mediating it is because you want to find a solution short of continued expensive litigation and the uncertainty of a trial. You want to remove that uncertainty and have input into the result. You may also want to repair your business or personal relationship with your adversary, or with others in your business that are strained by the lawsuit. There may be some business deal that can replace the outcome of the litigation. Just being able to run your business instead of litigating the dispute and paying lawyers could be a win.

So, how do all of these concerns bear pon the choice of the style of mediation?

Evaluative Mediation
This is the sort of Mediation that most retired judges favor because they have been evaluating cases on the bench for years, if not decades. An Evaluative Mediator will require lengthy briefs on the merits, read them, and give an opinion on the merits at some point in the Mediation, perhaps early on. There are problems with this approach. First, recent studies show that Evaluative Mediators poorly predict outcomes in cases that have been tried. Second, once an opinion is given, party agency is stifled. If a Mediator says a case is worth $50,000, a Defendant will not pay more. The parties are not bargaining, they have just given jurisdiction to a different judge. Third, it is doubtful that the Mediator has a better handle on the case than the lawyers who have been working on it for months or years. So why is his/her opinion needed?

The Evaluative Mediator will usually start with a joint session, let his prejudice be known then pound on the parties in separate sessions to get the result he/she deems just. Satisfaction with Evaluative Mediation is generally less than with Facilitative Mediation.

Facilitative Mediation
The Facilitative Mediator is not as concerned with legal arguments. He/she seeks to construct a settlement satisfying both sides. Party satisfaction is what is sought. The Facilitative Mediator will try to identify the primary interests of each side-what do you need to protect most of all? Then the joint interests- what brought you together as partners? Do you see the prospect of working together again if we can solve this issue? What misunderstanding gave rise to this dispute?

What do you need to make this go away? Is there a role for apology, forgiveness, and reconciliation? The Facilitative Mediator will ask both sides to consider the alternatives to not making a deal. This includes all of the costs of litigation—the direct and indirect costs. Direct costs include legal, accounting, expert, court report, trial transcript, jury, and other fees. Indirect costs include emotional costs, strain on relationships, lack of attention to business etc. The possibility of appeal and failure to collect also needs to be considered.

After tallying those costs, a predicted result will be proposed and the costs will be deducted from it then that can be compared to the offer on the table.

How does the Facilitative Mediator proceed? Generally, the mediation begins with individual sessions. As the parties get closer and the atmosphere becomes positive, a joint session can be included. If the deal cannot quite close, the Mediator may propose a number of ways to bridge a small gap- a Mediator’s proposal, each side picks a number, the Mediator picks one, and the party number closest to the Mediator is the one selected etc.

As each case is unique, you and the other party, will need to determine which mediation style would work the best for your case, either way, you will still need a mediation attorney by your side. Mediators in Santa Monica are trained, qualified, and certified to do the job. The style of mediation you choose will depend greatly on the issues at stake and the nature of your relationship with the respondent. You will need the advice and guidance of an experienced mediation lawyer to help you come to a favorable resolution.