I have used it for tense cases when the lawyers have told me that their clients need to be in separate rooms. I beg to have a joint session to begin with, promising that their clients need not say a word. I do my mediators opening, and then I ask counsel to give it their best shot, as if delivering closing arguments at trial.
Each client gets the nice warm fuzzy of hearing their lawyer sticking it to the other side, but they also hear the opposing view all too directly from the horse’s mouth of opposing counsel. We then retreat into caucus, and I present my take on the dispute after hearing both sides. The clients are still not saying much. It is the same presentation in both rooms. I ask if anyone thinks I am seriously off base as I give my assessment of the situation. It is my assessment, as I’m not soliciting party impressions directly at that point. I may shuttle back and forth a couple of times to adjust my attitude, but I don’t carry offers or say much about what is happening in the other room.
A poodle can carry offers between rooms, and doing that is way for one side to insult the other with lowball offers via me. That is just not going to be productive in seriously difficult cases.
What seems to work is for each side to negotiate with me separately. I know how close they are, but I keep them in the dark about what is going on in the other room. When I sense overlap, or if I think they have come as close as they will go, then I start to propose settlement. This seems to work, because when people are seriously out of sorts with each other, it can be nicer and more productive to negotiate with me. So far neither side has directed the same vitriol to me as they would to each other, so negotiations proceed apace.
There is still time to empathize in the midst of all this. I do try to tease out the emotions and principled sticking points of each party. It is also more of an interest-based mediation than you might think. Once I have grounded myself in a view of the dispute that both parties can accept, then I do start listening out for those varied interests of payment now rather than later, structured payment plans, interest rates, risk versus certainty, etc. These caucuses are also a good place for candid settlement discussions with counsel about prospects in court, costs of enforcement, and all those other intangibles that go into each party’s Dirty Harry moment (I hope you have seen the movie): “you’ve got to ask yourself one question: 'Do I feel lucky?“
Therein lies settlement by mediation, even when it is a prickly conflict about money, or some other zero-sum prospect. Interposing a calm, constructive, and neutral negotiator will often get you there, or at least close enough for counsel to finish up on the eve of trial.
This approach is harder when there are more humanly felt issues than money, but I am thinking this has its merits when the kum-bah-yah does not look too hopeful. If the parties do get close, I can pitch my own proposed settlement, and hope they come to their senses after sleeping on it.