As any experienced mediator can attest, there often comes a point in the mediation process where things between the two (or more) parties become a bit contentious. Each side has his idea of what he is looking for and expects opposing counsel to immediately understand where he is coming from. Rarely does this happen, so it is crucial for the neutral to ‘take a stance’ and assist the parties in coming to a reasonable conclusion.
Oftentimes, the mediator is required to take a side on a particular issue; this is generally an unavoidable step in the mediation process. While in itself not a cause for concern, the danger in choosing sides too early in the negotiation is that the mediator can alienate a party; resulting in disastrous consequences for both the mediator and the parties. However, it is important to note that parties might have hired a mediator because of his persuasive skills and/or knowledge of the particular subject matter. Do not be alarmed when your mediator takes a side: A mediator who avoids taking a stance is like a car stuck in neutral. And no one, certainly not the parties in a negotiation, want the mediation to go nowhere.
There is an art to taking one party’s side while not completely alienating the other. A skilled mediator will draw the parties into discussing their goals for the case, revealing key objectives that the mediator may be able to utilize down the road when choosing a side. By judiciously gathering information from both parties, the experienced mediator is able to position himself to take a side and be persuasive only after pre-qualifying his ideas with each party, and considering the appropriate timing of the position. As always, timing is everything; even in a mediation.
Bruce A. Friedman is a mediator with a national practice. With years of litigation experience behind him, he understands the goals of the mediation process and will do his best to ensure that the needs of both parties are met, justly and efficiently. For more information on the mediation services that Bruce A. Friedman provides, check out his website at http://www.FriedmanMediation.com or call him at (310) 201-0010.