Mediators typically attempt to settle cases by applying one of two approaches: facilitation or evaluation. Commercial litigators may be surprised to learn that the vast majority of disputes are resolved using the facilitative approach, which can be defined as a mediation in which the mediator’s role is to assist the parties in reaching a settlement that they craft themselves, without the mediator giving any advice or proposals. This approach has proven successful in resolving many types of disputes, such as divorces, landlord/tenant and small claims cases, and especially where one or both parties are not represented by counsel. It is based on the theory that the parties need to create and own their settlement for it to be effective, and not to feel that it has been imposed on them.
In mediating commercial disputes, where both parties are typically represented by counsel, the parties typically seek out mediators who they think will understand and agree with their theory of the case and will be able to convince the other party to change its position in order to reach a settlement. In commercial disputes a mediator who can evaluate the positions of the parties and who can accurately predict how a judge or a jury will react to those positions is viewed as more likely to enable the parties to reach a settlement than is a mediator who employs a more passive approach of just relaying offers between the parties.
However, many commercial mediations fail because one or both parties reach the limits of their willingness to compromise. Even though the mediator may make clear to a party that its position does not reflect the likely cost and outcome of the case, or the mediator may make a proposal to resolve the case, the mediation still fails. In these situations, a mediator who can employ the facilitative approach may be able to break through the barriers that are preventing the parties from reaching a settlement. The facilitative approach is based on using psychological techniques to help people change their positions. In commercial cases, this approach can take the form of the mediator “thinking outside the box”. For example, when the parties are fairly close to a settlement but each refuses to negotiate further, instead of declaring the mediation a failure a mediator knowledgeable in facilitative techniques could find ways to get around the impasse through probing the parties to find non-monetary contributions that they might be able to make to reach a settlement.
Some evaluative mediators may unconsciously use facilitative techniques to break impasses, but a mediator who has knowledge of the range or facilitative techniques, and how they work, has an advantage when using that approach to bring the parties to an agreement. So, yes, a mediator with knowledge of the facilitative approach can be useful in mediating commercial disputes.