The Wrestling Match
For me, the phrase “tag-team” conjures up vivid pictures of a masked wrestler with his arm stretched far into the ring waiting to be tagged so he can come in for the kill and inevitable win. I can see myself as a boy, sitting in front of a black & white television, eyes glued to a massive, muscle bound human machine waiting to come into the ring to claim his victory.
Though somehow, I knew the wrestling match I was watching was staged. I also knew the righteous opponent was more likely to win, no matter how poorly the match appeared to be progressing for him. And, in the end when the final touch of hands occurred between the two prize-winning “tag-team” members, the fight was over and the better opponent prevailed victoriously winning the prize of an ornate belt confirming his status as the current reigning champion.
But, is it the righteous opponent who prevails in the arena of litigation? Or, does the opponent with the best prepared team of litigators or defense counsel win by producing the most illusive show. We have often criticized the “system”, i.e. our judicial system saying it just doesn’t work. How many times have clients prevailed in litigation only to find the spoils of war have little value after computing attorney’s fees, and costs and expenses of the battle? This is just one reason why there has been a strong move toward alternative dispute resolution and specifically toward utilizing the mediation process.
Traditional Approach to Mediation
Those who study mediation learn about different techniques; different “models” as the academias call them. This menu of approaches includes facilitative, evaluative and transformative styles of mediation. Each of these styles or models has the capability of bringing forth different results. Facilitative mediation, for example helps disputing parties discuss their differences by use of various “questioning” techniques. The transformative model allows combating opponents to mimic what might be labeled “free association” by traditional Freudians and has a therapeutic value of removing anger and hostility helping to pave the road toward settlement. And, the evaluative model is the model most lawyers are familiar and more comfortable with as this style of mediation brings in “lawyer like” analysis of how a case is progressing and what the likelihood for a win will be for each side.
Some mediators fair well in one model or another. While other mediators move from technique to technique having no set model or approach. Many mediators don’t even work with the “model” paradigm and simply function from a mode of going wherever the parties seem to be leading.
But, whatever approach the mediator may take in his or her analysis of the needs of the warring parties, the most familiar paradigm is that of a single mediator heading up the process and, on occasion two mediators working together in a co-mediation-partnership approach. We have found yet another approach that taps directly into the awesome power of “tag-team” mediation.
Cohen, an attorney and adjunct professor at Pepperdine University’s Straus Institute for Dispute Resolution, is the firm’s owner and most senior mediator. He has mediated over 2,000 cases spanning most areas of law. He consistently brings in settlement rates in excess of 90%.
Judge Burton S. Katz, Superior Court Judge retired, is the second member of the “tag-team” and is a seasoned neutral recognized for his prominence as a legal commentator and legal analyst in his own right. Katz’s broadcast credits include anchoring MSNBC’s Judge and Jury, American Journal, Larry King Live, CNN, Charles Grodin, the Today Show and Hannity and Colmes among others.
Utilizing the “Tag-Team” mediation approach
The “tag-team” approach centers on the experience and skills of the first mediator for better than 80% of the process. Then the mediators switch roles, with the second member of the “tag-team” moving into a strong facilitative-evaluative style. “We have taken the past twelve months to introduce this new style of dispute resolution to our clients – and work out our timing”, says Cohen. “This new approach has been used to settle insurance bad faith cases, employment and discrimination matters, and real estate and construction disputes. Thus far, the results have been overwhelming with a staggering overall settlement rate of 97%.”
There are still some basic rules and conditions necessary to lay the foundation for settlement. For example, most real estate and construction matters still require the lion’s share of discovery completed prior to mediation. Fortunately, other matters can often be brought to early mediation saving considerable discovery and litigation costs.
“High settlement rates translate into substantial time and cost savings for disputing parties,” Cohen adds. “The ‘tag-team’ mediation approach offers an amazingly effective and compelling method for clients who want the very best chance of settling their case through the mediation process.”
Traditional models of mediation will continue to foster settlement in many areas of litigation. However, for some, this new approach brings results we have thus far been unable to achieve with conventional alternative dispute resolution processes.
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