The Mediation Process
Robert G. Millenky, P.J.Cv. (Ret.)
As a judge I had the privilege of managing pre-trial proceedings in thousands of cases, trying hundreds of them, and facilitating settlements in many more. From that experience, and from my prior work as a litigator representing both plaintiffs and defendants, I have developed and maintain an abiding respect for the knowledge, conviction, insight, and analysis that litigants and their counsel bring to a dispute. I also maintain an abiding belief, as do so many of the attorneys and litigants I have worked with, that a fair pre-trial resolution of a dispute achieves justice and avoids the unpredictability, expense and time that a trial entails.
Mediation allows for a structured but non-binding give and take that can produce that fair resolution. To achieve this, the mediation process taps the qualities and skills of each side, and, critically, inserts a non- stakeholder, the mediator, into the negotiation process. The mediator guides the give and take so that the parties, as they advance positions during negotiations, can avoid impasses and continue to safely explore paths to settlement. In short, the mediator keeps a negotiation moving forward.
Procedures in the mediation process which I employ to achieve positive outcomes include the following:
Through careful review of pre-mediation submissions, I bring to a session a thorough understanding of the facts and law.
During repeated confidential and sequential caucuses with each side, which may follow a general session, I provide each party with the opportunity to further educate me concerning the fine points of their position. Through the conversations that constitute this educational process, I assist the parties in refining perspectives and insights on critical points. I facilitate the discussion which allows each side to safely explore settlement options. Specifically, I use my developing understanding of the dynamics of the dispute to suggest to the parties particular settlement approaches which may be productive.
As I shuttle between caucuses, I carefully transmit and explain evolving negotiating stances, consistent with the disclosure authority each party vests in me. My knowledge of each side’s developing position allows me to explore and test the viability of developing stances without disclosing what might otherwise be interpreted as a concession that weakens one side. I am consistently attentive to the need to avoid jeopardizing a party’s bargaining position.