Mediation Style

The two ends of the style spectrum can be expressed as passive and active (or in-your-face).

At the passive end, the mediator may be content to ferry offers and counter offers back and forth and consider his job done if both sides have fully stated their bargaining positions, whether or not they reach agreement.

An active or aggressive mediator considers it mandatory to find out whether the case can be settled at the mediation. Sometimes cases that are settleable don’t settle. That is a missed opportunity. No case should fail to settle at mediation because the mediator doesn’t try hard enough. This requires the mediator to push and prod the parties to conclusively determine whether the gap (between what the plaintiff really wants and what the defendant is really prepared to pay) is truly insurmountable.

After listening carefully to both sides, the mediator will begin probing for ways to create movement towards a settlement. He will push each side to more fully acknowledge its own weaknesses and the other’s strengths and he will make each aware of the risks it faces should the case proceed to trial. Active mediators can be quite involved and assertive in late-stage mediation.

Many consider Frank to be an active or evaluative mediator.