The Socratic non-evaluative Mediation method focuses on the perceived outcome risks of the Arbitration. As in trials, settlements are mostly achieved when counsel are required finally to realistically respond to the perceived outcome of the pending trial or Arbitration. The overriding reality, therefore, is that a Med/Arb session provides the most positive conditions for settlement, other than during the trial, and should be encouraged.
Relevant information is the key to settlement. If more relevant decisional information is presented during the Mediation, the parties are better able to assess the risks of the Arbitration.
It is in these pre-determinative circumstances that counsel and parties may be open to participate in a methodology that allows them to better assess the perceived risks of proceeding with the Arbitration under the guidance of a mediator who does not want insider information or presents any appearance of being able to attain it from others, such as in a caucus.
A Socratic Mediation minimizes any downside from the process. It largely remains under the control of the lawyers, which should be stated at the opening of the Mediation. It seeks volunteered information that expands on what is already required by most arbitrators pursuant to many Arbitration Rules. It is also more refined information that the parties have agreed will be presented, hopefully in a written form, in the forthcoming Arbitration. It should at a minimum eliminate some issues, narrow others, and expedite some of the fact-finding procedures and legal arguments to facilitate and hopefully shorten the Arbitration.
For the Socratic method of Mediation to succeed, the mediator cannot engage in any procedure that will prevent undertaking the Arbitration in circumstances similar to a trial situation, which is on a tabula rasa basis, except with respect to information volunteered by the parties.
The Mediation is conducted in a less formal adversarial environment around a table by the mediator raising, as opposed to questioning, aspects of each party’s case, somewhat following the interest mediator’s methodology. The objective is to encourage parties to present their case in a more specific way relating mostly to the principal issues that can be agreed on, how they see the factual matrix unfolding, or legal rules impacting the outcome, and what aspects of their cases may have the most persuasive effect.
I remain optimistic that when the timing is right, and with an appropriately conducive environment (that hopefully should continue into the Arbitration), a Med/Arb session conducted in this manner will significantly increase the chances of settlement. If not, it should prove in some other means to have been a worthwhile step for the conduct of the Arbitration, besides presaging better settlement opportunities for its conclusion thereafter.
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Peter Annis Dispute Resolution 