A mediator with subject matter expertise, understanding, and experience in seeing how things play out at trial or in arbitration, can be a valuable asset when working to settle cases and move files forward.
Informed, Knowledgeable and Experienced
A key part of an effective mediator’s role is to help parties see the strengths, weaknesses, and risks of their case. A well-informed mediator can also offer their own perspectives on the parties’ position on issues such as liability and damages.
To make an impact and bring value, a mediator needs to understand the parties interests and legal positions. A strong background in the law, including practical experience and observations relating to similar cases can be very advantageous to the parties at mediation.
A mediator also needs to be knowledgeable about legal issues and trial/hearing dynamics. By truly understanding what can and does happen at a trial and/or arbitration, a mediator can make a significant impact, especially if the parties reach an impasse during mediation. A mediator with an informed viewpoint can provide a valuable analysis of the costs, benefits and risks of proceeding to trial and/or arbitration.
Often during a mediation, counsel will state that certain testimony, evidence or reports will be the key to a successful outcome at a trial/hearing. A mediator who has extensive experience arbitrating cases – evaluating witnesses credibility and documentary evidence – can provide their take on the persuasive a witness’s testimony, pieces of evidence and various reports.
Facilitating Consensus, Questioning Assumptions
Mediators often caucus with each side and practice “shuttle diplomacy.” As a third-party go-between, a skilled mediator can deliver messages in a manner that reduces unnecessary conflict and the potential for misunderstandings.
Sometimes, a lawyer and their client may not be seeing eye to eye on the case; in this situation, a knowledgeable and experienced mediator can really make a difference in helping to build the consensus necessary to move a matter forward.
By posing thoughtful questions and probing assumptions, a mediator can help parties see the important issues in a different light. This approach can provide valuable insight and assist the parties as they assess the risks of proceeding to trial. It can also often make a settlement, or progress towards a settlement, more likely at mediation.
Counsel I’ve mediated with often tell me that their biggest concern with mediating files is that sometimes mediators seem to give up too quickly when the parties appear to be far apart and the prospect of settlement appears unlikely. A mediator with a 360-degree perspective, who has adjudicative experience and the ability to pose questions that get the parties thinking differently will be far less likely to throw in the towel when the distance between parties seems insurmountable.
ABOUT THE AUTHOR
Marshall Schnapp, BA, JD, LLM (ADR) has been resolving disputes for over 10 years as a mediator and has extensive experience in adjudication as well. Clients consistently recommend Marshall for his upbeat, tenacious attitude, and the skills he has honed helping resolve thousands of matters.
Get in touch with Marshall by email at marshall@schnappmediation.com or by telephone (647) 250-7216 today to set up a consultation, and see why he is the right mediator for your next file. For booking availability, please visit https://schnappmediation.com/calendar-2/ or contact Lacey Day at lacey@schnappmediation.com or (647) 250-7216.
Originally published in 2021. Last updated October 2023.
