An effective mediator can be the difference between protracted, expensive litigation and moving on with more a productive use for one’s time. Even if you are determined to see a matter through trial, going through a mediation process can help you better assess all the risks of doing so. As an attorney I have participated in hundreds of hours of mediations during the litigation of many multi-million dollar disputes. I first taught a mediation class at a law school twenty years ago, so mediation is not a passing fancy for me. I have been trained to mediate in both Illinois and Texas and consider both Chicago and Austin as my home base – whichever is better for you.

As a threshold matter, a good mediator needs to understand the litigation process, the applicable law and the specific dispute between the parties. A mediator should be flexible and willing to mold a particular mediation in the best way to assist the particular parties in reaching an agreement. A good mediator needs to be creative and personable enough to build a rapport with all parties to foster an environment of trust. Along those lines the parties must feel confident that statements made in private will remain confidential. Significantly, a good mediator must be neutral and, in Texas, cannot “impose his own judgment on the issues for that of the parties.” Civ. Practice and Remedies Code, Sec. 154.023. A mediator assists the parties in seeing whether they can achieve a settlement. That said, if the parties request the mediator to play a more active role, the mediator should be able to offer suggestions. Tactics like a “mediator’s number” can often assist in breaking a difficult impasse. A skilled mediator can often recommend a solution that neither party loves, but can live with.

I believe that I can assist parties in all types of legal disputes. My experience in larger, complex cases is invaluable to my mediation practice. In those cases, parties often set up models to calculate their risks in deriving a value for their case (or their opponent’s case). A good mediator understands the limits and potential problems with such probabilistic calculations. Many if not most lawyers hate math. In fact, there is a small niche in academia that debates the use of mathematics in the court room because it often is used incorrectly. See e.g. “Trial by Mathematics: Precision and Ritual in the Legal Process” (84 Harvard Law Review 1329 [1970-71]). The bottom-line is the legal system is often ill-equipped to assess probabilities. Probability problems often appear to be simple, but are more complex than the lawyers understand. The attached article uses the “Monte Hall Problem” to illustrate this problem in more detail.

As stated, a good mediator must understand the legal process and the facts in dispute. That said, a great mediator also understands the pitfalls in translating those facts into a “value” for a case, which necessarily considers potential future possibilities – i.e. probability. Not all mediators need to be mathmeticians and I am myself an not. However, finding a mediator that can effectively engage the parties in a discussion concerning all aspects of their case (legal support, factual issues and evaluation calculations) can be difficult. I would be honored to assist you in resolving your legal disputes through mediation.

For more information contact Steven Schulwolf. Mediation Article (PDF)