Working together with the parties in a disputed matter, whether in litigation or pre-suit, requires that the mediator have an appropriate viewpoint of the process itself. There is a very fine line which the mediator must navigate in striking a balance between the differing positions and settlement expectations of the various parties in direct contrast to what would be a fair and reasonable resolution based upon the facts of a particular claim and the potential outcome which could result at a trial.
Martin G. Waldman believes that a mediator must at all times remain neutral. It is necessary that the mediator strive to objectively discuss the varying positions taken by the litigants without exerting any influence, or implying a bias, towards either side. Just as importantly, the mediation hearing itself should at all times be conducted in a polite and respectful manner so as to allow the participants a forum to openly discuss their different positions, which in turn assists in the facilitation of an amicable resolution. Lastly, it is the mediator’s responsibility to ensure that even should a settlement prove to be unattainable, each side nonetheless leaves the hearing with a full awareness of the other party’s perspective of the dispute.
Through applying this philosophy, an atmosphere can be created during the hearing process to foster continued discussions, should a settlement not be reached, thereby keeping the lines of communication open between the participants which could allow for a resolution to ultimately be reached prior to trial.
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