The Daily Journal | California Lawyer

Migrating Away From Traditional Models of Mediation

June 19, 2020

By Daniel B. Garrie, Hon. Gail Andler, & Ben Armistead

Mediation is often viewed by lawyers as a “this” or “that” on the spectrum from facilitative to evaluative. In reality, experienced neutrals view mediation as a process customized to the needs of the parties in a particular case. Similarly, many lawyers view the mediation process as involving either joint sessions or individual caucuses, when in reality experienced neutrals will consider a blended approach.

Sometimes, an initial joint session may be preferred to allow the neutral to bring parties and counsel together for an optimistic welcome and setting of the ground rules. The parties may then decamp to individual rooms with the mediator shuttling between separate caucuses, perhaps bringing the attorneys and/or parties together for expert presentations and documenting the settlement. In another case, the initial joint session may not be necessary, so parties may proceed in individual caucuses until a joint session is needed for expert presentations or documenting the settlement. In brief, there are as many variations of this process as there are disputes.

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