Mediation, Arb/Med and Med/Arb
Mediation is a private, confidential, informal means of resolving disputes. The parties are assisted in their communication and helped in describing their objectives by the mediator, so their interests become clear to each another early on. Then, the mediator can gently either facilitate discussion or express opinions and cause positions to be influenced through conversation, sometimes with everyone in the room and sometimes with one party at a time separately (“caucus”). Ultimately, mediation is an educational experience for all sides by which the parties can not only express their own views, but are able to see and understand the views of all others involved in the dispute. If appropriate and if requested, the view of the mediator is also considered by the parties in settlement decisions. ADVANTAGES OF MEDIATION:
Mediation is particularly useful in the resolution of disputes involving people who must continue to interact with one another or who have an ongoing relationship with one another. It is particularly well suited to Family Law matters and disputes involving people who have an ongoing business or contractual relationship. Mediation is usually cheaper than litigation, takes less time to complete than trial, and results in a sense of acknowledgment and “having been heard” that doesn’t always happen in trial.
Mediation can be: Facilitative, where communication is the key and the mediator merely conducts the course of the conversation; or,
Evaluative, where there are opinions expressed by the mediator and the goal is the settlement, somewhat disregarding the effects of the path taken (a more directed and “bottom line” approach); or,
Transformative, where the goal is empowering the parties and influencing a change of stride so that future communication channels are opened and maintained; and,
Strategic, where the mediator moves subtly from one mode or model to another at just the right moment, seamlessly, in directing the discussion to mutual agreement and settlement.
I consider my style to be Strategic. I believe that parties that create their own solutions end up with better, more satisfying, longer-lasting resolution. So, to the extent possible, I place myself in a facilitative mode. If the attorneys specifically request and agree, I will provide my opinion on likely outcomes at trial. Likewise, if impasse is on the horizon, I may move towards a more evaluative model momentarily to prevent a stall in the session.
In this model, the case is first Arbitrated to conclusion. The award/decision is written by me and sealed, disclosed to no one. Then, we commence Mediation. If we are successful at Mediation, I retain the Arbitration decision and it remains unknown to all. If not successful, the award is distributed to the parties and it becomes a binding decision.
This model eliminates all of the potential issues of conflict, confidentiality, evidence and discomfort that a typical Med/Arb model (the converse of Arb/Med) may cause.
These services are billed at my normal hourly rate. Self-represented parties will be required to sign a written waiver of conflict.
Med/Arb is the converse of Arb/Med. In a case which is likely to settle, the savings by avoiding a hearing prior to commencing Arbitration can be substantial. However, there are evidentiary issues, admissibility issues and conflict issues that present under this model if the case fails to settle while in Mediation. For these reasons, substantial explanation and advisement of potential conflict is required. Self-represented parties will be required to sign a written waiver of conflict.
"Irwin does an amazing job of neutral mediation based on a rich background of experience. He was a miraculous find in our frustrating process of navigating the court system."