In a single afternoon, the doctors created an agreement to parse the remaining assets in their partnership, but they were still arguing over money. They remained stuck on this point until Seigle asked if the first doctor would make a donation to their synagogue in the amount that the second doctor was seeking. She then asked the second doctor if he would accept this gesture as a compromise. Both agreed.
Seigle, who has been a mediator for 20 years and has resolved more than 300 business and contract disputes, points out that her proposal was not a solution that a judge or arbitrator could have suggested. “You’re not just using the legal parameters to define a case. You have other choices beyond those,” she explains.
Countering Conflict
When a lawyer or a judge suggests mediation as an alternative to litigation, he or she usually means “evaluative” mediation, sometimes known as a settlement conference. Evaluative mediators are often former judges who tend to offer opinions about how the courts would view a dispute; they also offer their own opinions about what settlement would be fair. This type of mediation works well between strangers in conflicts over factual issues or case law. Yet forcing a settlement between siblings arguing over an estate, or between majority and minority owners in a family business, can severely damage relationships and the assets in dispute.
Many mediators are moving toward a newer form of conflict resolution called “facilitative” mediation to decide more sensitive cases involving estate plans, family business disputes or conflicts between trustees. Facilitative mediators do not offer an opinion as to how a court would view a dispute. They do not force a settlement, but rather ask for suggestions from the parties and their lawyers, as well as any experts the parties want to bring into the discussions.
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