Evaluative mediation not for the faint of heart
By AdvocateDaily.com Staff
Between them, Fisher, principal of Barry Fisher Arbitration & Mediation, and Israel, founding principal of PI Mediation, which specializes in mediating and arbitrating employment law disputes, have almost eight decades of experience in employment law, and they’re not afraid to bring that knowledge to bear in their role as neutral.
“I find it a little distasteful when I hear about mediators who simply take offers from one room to the other, and say, ‘Here’s what they want,’” Israel tells AdvocateDaily.com. “The law has to have some integrity, which is why I try to bring some evaluative reasoning to the process, taking into account the case law, credibility of the parties, and decided authority.
“The analysis is somewhat different in each room, based on the materials that you are provided, but a mediator can give parties a reality check,” he adds.
Fisher, who also favours the evaluative school, likes to get straight to business, skipping the joint sessions that traditionally open a mediation, to negotiate directly with the parties in caucus.
He also encourages parties to drop the pretense surrounding unrealistic defences or exaggerated claims that he says often find their way into pleadings as “screens.”
“It’s a judgemental approach, but we want to test the real issues,” Fisher says, adding that he likes to have counsel commit to a dollar range within which the claim falls.
“I expect the first offer to be within that range,” he says. “I tell them it’s not my job to convey stupid offers, which usually shames them into making a fair one.”
At its essence, Fisher describes his job as pointing out the weaknesses of each party’s case, rather than focusing on the strengths. Things can get tricky when he identifies an oversight by one side or the other in their pleadings or mediation brief.
“Because I’ve been doing this so long, I’ll sometimes see something that the plaintiff has missed that could make their case stronger,” he explains. “It would be completely improper for me to draw the plaintiff’s attention to that, but having left the room, I can let the defendant know and say, ‘you may want to take advantage of that defect today before they go back and someone enlightens them.’”
“You want each side to feel like they got something,” Israel adds.
Even without the authority of a decision-maker, he says he’s not shy about pushing parties towards his favoured outcome.
“I put myself in the shoes of a trier-of-fact, and then I drag both sides towards the range I consider to be right for the claim,” Israel says.
“If you do it correctly, and earn the respect of the people in each room, they usually end up reaching the same conclusion,” he adds, noting that his approach is backed up by a settlement rate above 90 per cent.
Still, Fisher says the active style takes some getting used to for some parties and their counsel.
“I come on strong, so if they haven’t dealt with me before, they might accuse me of being biased,” he says. “I explain that bias would be favouring one side or another without knowing anything about the case. If I render an opinion after listening to the facts and applying the law, that’s not bias.”
However, Fisher says both sides usually know what they’re getting for their money when they approach him or Israel to mediate a dispute.
“We both use our personalities to push people, maybe some more delicately than others, towards settlement,” Israel says. “And we’re both very successful at it.”