Nachshin stresses that mediation is nothing more than a discussion facilitated by a neutral party; the mediator has no legal power. Like many lawyers who try contentious cases, he feels that the best mediators lean toward an evaluative approach that allows the mediator’s opinion to lead discussions. “The best mediator I’ve seen in Los Angeles is a retired judge who is very aggressive and opinionated and so well thought of that she’s booked four to six months in advance. Most other mediators are available next week,” Nachshin says.
Other critics suggest that mediators who rely on the parties to negotiate a settlement are allowing the stronger party to crush the weaker party, and because of that, mediated agreements can be grossly unfair. Nelson agrees that people in mediation need proper representation by an attorney, even if they commit to settlement negotiations. “You don’t get what you deserve in mediation,” she says. “You get what you negotiate. You are still putting a lot of trust in other people’s hands.” And unlike a court case or an arbitration hearing, in which participants are bound by the outcome, a mediation is a take-it-or-leave-it proposition. “If you don’t like the settlement, you can walk away,” says Friedman. “Ultimately, both sides have to believe that their settlement is better than going to court. Otherwise, don’t settle.”
Michelle Seaton’s work has appeared in Robb Report, Yankee, Reader’s Digest and on National Public Radio. mdseaton@hotmail.com
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