Zenith Legal Services

At Zenith Mediation Services, an evaluative mediation method is utilized to help guide the parties involved to a constructive resolution. Ultimately, the goal of mediation is to reach a settlement, and, should a settlement be reached through mediation, the settlement agreement is binding

Evaluative Mediation vs. Facilitative Mediation

Facilitative Mediation: Facilitative mediators strive to “facilitate” the negotiation between participating parties. In facilitative mediation, the mediator structures the mediation process to help the parties to reach a mutually agreed upon resolution. The facilitative mediator does not make recommendations to the parties, give his opinion regarding the matters in contention, or predict what a court would do in a case. A facilitative mediator only manages the process.

Evaluative Mediation: Evaluative mediators assist the parties in reaching resolution by helping to “evaluate” the strengths and weakness of the cases and providing impartial insight and analysis as to the issues at hand. The evaluative mediator structures the mediation process, directly influencing the outcome of mediation by helping the involved parties and attorneys re-evaluate their legal positions (based on the facts that have been revealed during mediation), including cost-benefit of pursuing a litigated resolution versus settling in mediation.

The Process

The first (and most important) step of the mediation process is to gather the facts and determine what it is that is in dispute and that both parties are aware of, and agree to, the facts of the case.

Mediations can be in person or remote using a proprietary online mediation platform, depending on the preference and location of the parties.

Mediations begin with an introduction session where the parties – either jointly (“caucuses”) or separately – are introduced to the concept of mediation. The mediation process is explained and the role of a mediator - and what the mediator can and cannot do – is explained.

If attorneys are not present, it is confirmed that that the right to have an attorney present has been waived by the party who is pro se, and that the parties present are authorized to agree to a potential settlement agreement.

In family mediations, due to the emotional aspects, the parties may not have any joint sessions.

At the SMU Conflict Resolution Center, the mediation occurs in a large room with two smaller rooms for the parties to sit privately. One by one, the parties are brought in separately into the larger room to establish the facts of the case. The facts are listed in chronological order on a large white board, and both parties are given an opportunity to approve or edit the facts at hand.

Once the facts have been established, the first party is brought in to discuss what their “positions” entail: what they would like the outcome of the mediation to be. Based on that, “interests” (which are different from “positions”) of the parties are also identified to establish what is guiding their positions. There can often be overlap in parties’ interests, and that is where agreements start taking shape. When the second party is brought in to state their positions and their interests identified, the mediator looks for potential overlap and areas of common ground.

Gradually, the parties begin to converge. Sometimes, it’s the “little things” that are resolved first, while other times, the bigger issues are addressed. Back and forth, discussions are had and agreements are made on the on various matters in contention.

Once a final agreement is reached, the mediator draws up the agreement (which is known as the Mediated Settlement Agreement), and witnesses its signing by both parties, who are then able to file the agreement in court for the judge to sign an order.

The Mediation Environment

Mediation is conducted in a completely relaxed atmosphere unlike in a courtroom (where the nature of the process is adversarial). Parties can spend the whole day and reach any agreement they want that works for them, irrespective of laws governing their matter, whereas a judge could spend some 30 minutes on their case and, based on the law, potentially make some orders for them that might satisfy neither party.

The mediator can provide guidance during the mediation but cannot give legal advice.

With his knowledge and expertise, Venky Venkatraman is dedicated to encouraging his clients to come to a mutual agreement, and rarely do his clients not emerge from the mediation process without reaching a settlement.