Why choose Marc Kalish as your Mediator
Marc Kalish - Arizona Mediator
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Why Choose Me As Your Mediator

Mediation is facilitated negotiation.  As apposed to arbitration, mediation is not a process by which the neutral decides who wins and who loses.  Rather, mediation is a risk assessment process.  By helping the parties identify and explore the strengths and weaknesses of each party’s positions, often by playing “devil’s advocate,” I help each party see the dispute from the other side’s perspective, in addition to helping them see how a judge or jury might view the various factual and legal issues.

I firmly believe that I possess all the qualities necessary to be a successful mediator.  In my more than 13 years as a trained mediator, I have found those essential qualities to be:

  • Experience in all aspects of the traditional dispute resolution process (i.e., court-based litigation) in order to assist with the accurate identification of the strengths and weaknesses of the various positions at issue and the risks of proceeding versus the benefits of settling.
  • Creativity, because one benefit of mediation is to offer resolutions that are not available if the dispute is resolved in court, and a resolution that might seem possible at the start of the mediation may not be the resolution that ends up being adopted by the parties.
  • Flexibility, which allows the mediator to identify the need to try different approaches to settlement and know the way to implement them.
  • Empathy and patience, which allow the mediator to establish rapport with the parties and counsel.
  • Efficiency, because mediation can be an expensive process (with parties paying a share of the mediator’s fees as well as their own attorney’s fees).
  • The ability to be a quick study, because mediators generally do not have a lot of time to prepare.
  • Knowing when to quit, because not all mediations will be successful and the mediator’s ego (i.e., concern for “success rate”) should not drag the process out in the hope that the parties will be worn down and accept a settlement that they may try to back out of the next day.

Unless the parties agree otherwise, my mediations begin with me giving a brief introduction to the process with all participants together in one room.  We then break up into separate caucuses, where I meet individually with each party (or in case with multiple parties on one side, most often with all of that group together at first and then, if necessary, individually with each one - see above under flexibility). 

I have abandoned the practice of having the lawyers make an opening statement to the other side, as I have found that such statements more often than not foster the dispute and make settlement much more difficult.  The first few caucuses are used to identify the various facts and legal issues in dispute and the relative strengths and weaknesses of each party’s positions on each.  After that, the focus shifts to possible resolutions.  One of the keys to success is for each party to understand at the outset (and I explain this in my opening session) that they are not there for me to decide who wins or loses on each disputed issue, nor will they convince their adversary or adversaries that they are wrong. 

A successful  mediation is one in which the parties accept a resolution that is reasonable in light of the risks involved in litigating their disputes, even though that resolution would not be as good as the best possible result they could achieve in court if everything went their way. 

 

 
 
 
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Marc Kalish, Arbitration and Mediation