Our Terms of Reference On The Appointment of Mbunye Nieklaassen Inc. Mediate Panel of Attorneys

1. Objective
2. the purpose of appointing the panel of attorneys is to establish a data base of legal skills available to Mbunye Nieklaassen Inc. Mediate and that can be contracted by Mbunye Nieklaassen Inc. to provide specialized legal advice and legal services.

I’m sometimes asked about my mediation “style,” and whether, for example, I would describe myself as “facilitative” or “evaluative,” with these terms roughly defined as follows: “Facilitative” mediators typically focus primarily on assisting the parties, usually in joint session, in understanding the needs and interests of both sides, and exploring options for resolution, without the mediator’s input as to potential litigation outcomes and the risks associated with decisions to not settle.

“Evaluative” mediators typically focus on litigation risks and costs, and potential trial outcomes, usually in separate caucuses with the parties, and assist the parties in “risk-benefit” analyses based on the strengths and weaknesses of their case.

I believe that a mediator must be flexible in his approach, and be sensitive to the needs of each dispute, and to the time within each mediation when it may be helpful to move from one approach to another, and perhaps back again. For example, an inter-family dispute over property or trust proceeds may be better served by, at least initially, focusing more on the respective needs and interests of the parties (a “facilitative” approach) and the (hopefully) common goal of preserving the family relationship, than on the respective strengths and weaknesses of the parties’ legal positions (an “evaluative” approach), which might serve to harden the parties’ already emotionally-charged positions. On the other hand, a real estate non-disclosure or construction defect dispute is usually best served by focusing, at least initially, on the “risk analysis” associated with an “evaluative” approach.

I’m also sometimes asked whether I use the “mediator’s proposal” approach to resolve an impasse in negotiations. With a “mediator’s proposal,” the mediator separately proposes to both sides a compromise outcome, usually although not always in the form of a monetary amount. Each side then separately tells the mediator, either right away or within an agreed-upon timeframe, whether the proposal is accepted. If both sides tell the mediator that they accept the proposal, the mediator then tells both sides that an agreement has been reached. If both sides reject the proposal, or if one side accepts it but the other side rejects it, there is no agreement. If one side accepts the proposal but the other side does not, the mediator does not disclose to the side that rejected the proposal that the other side has accepted it, so as to not jeopardize the accepting side’s negotiating position in the event of further settlement discussions. I will typically use a “mediator’s proposal” only as a “last resort” to break an otherwise unbreakable impasse in the parties’ positions, after the “gap” between the parties’ positions has been narrowed to the fullest extent possible, and only after both sides have authorized me to do so.

I believe the key is for the mediator to use all the tools at his disposal, at the appropriate time, in order to maximize the potential for resolution.