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Analytical Techniques in Mediation

Analytical techniques include:

  • Mediator discussion and analysis of legal and factual issues (including strengths, weaknesses, or both) without necessarily articulating conclusions and opinions
  • Mediator questioning about specific legal or factual issues, sometimes referred to as “reality testing” eg
    • How do you think a jury will evaluate your testimony about an oral agreement when the other side has a writing that seems to say something very different?
    • Will the court permit any testimony about the oral agreement?
    • Isn’t that case you rely upon substantially distinguishable from these facts based upon…?
  • Mediator “opinions” or observations of this sort:
    • Who knows what a jury might do with this case but based on what I have learned about this case… it looks like a horse race to me that either side could win.
    • Or, who knows…but I like the other side of this case better than yours.
    • Or, who knows…but I would agree with you that you should win this case, but I am having a very hard time with your damages claims—I wonder if a judge or jury might have the same difficulties that I have?
  • Mediator suggestions or proposals about settlement, sometimes based upon the mediator’s views of the “value” of the case, sometimes based upon the mediator’s views of “what the parties might accept” and sometimes based upon both
  • Specific mediator opinions, delivered to all sides, or delivered selectively only to one side or the other, about potential outcomes, dispositive factual or legal issues or settlement values

For more information please see the report from which these comments were taken ABA report

Please note that these techniques should be used with care and under no circumstances should the mediator express an opinion strong or weak in front of all the parties together.

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