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Mediation Approach    Picture of Jacob Tanzer  
Essentially, a mediation mirrors what formal negotiation ought to be, but it is more likely of success because it is conducted uninterrupted in one time and at one place by parties who want to settle. They identify the issues that divide them, they communicate directly or indirectly and a mediator keeps them focused until they reach their destination. There is a psychological dynamic that propels reasonable (and some unreasonable) people to do what is necessary to find a solution. If reasonable people want to settle, then this focused process works better than telephone tag.

I invite a confidential, concise, pre-mediation letter, which allows me to start with some understanding of the case and the people. Like most mediators, I generally begin with a joint session to explain the protocol. Unless the lawyers warn me off of it, I like them or the parties themselves to explain their position across the table directly to the other party. Then we divide into caucuses and I shuttle back and forth. I often bring counsel together for each to explain complex facts directly rather than use me as a conduit.

In the first round, I try to get to know the players, who they are and what's motivating them. Some lawyers enter mediation in hopes that I will persuade his/her client to understand the risks of litigation. I'm good at that. Some lawyers want me to persuade the other lawyer that he/she (the former) is right and that he/she (the latter) is wrong. I'm not so good at that.

Mediation, at its best, is more an art than a science. No one aproach is right for every case. My approach has evolved over years of experience. I was trained in the facilitative approach rarely to express an opinion, but to draw on the opinions of the parties in a manner intended to narrow the gap. Over the years, I have learned to be more evaluative. I find that parties often want my judgment and counsel.

I have learned to use both approaches and anything else I can think of. Intuition and insight are more important to me than technique. Risk, uncertainty, cost and delay, along with reason and judgment, are the tools of my trade.

Parties do not always like the result. Compromise is often achieved by parties obtaining something they want by accepting something they don't want. Yet, at the end of the day, even with a disappointing result, the parties often share a positive sense of relief that it's over, that risk is contained and that tomorrow they can move on to other things.