Here in King County, and increasingly in other counties as well, parties are required to go through some kind of dispute resolution process prior to trial to see if the case can in fact be settled. The most common type of pre-trial dispute resolution in litigated cases is the settlement conference. A settlement conference is a form of mediation commonly called “evaluative mediation”.
In evaluative mediation, the role of the mediator is primarily to evaluate the strengths and weaknesses of the respective side’s cases, and then push them towards settling along the lines of what the mediator believes the court would do at trial. Basically, if both sides can agree on what they court is likely to do, then they can spare themselves the expense of actually going to trial.
Most typically, in a settlement conference the mediator (or Settlement Conference Master) puts the two parties, with their attorneys, in separate rooms, and moves back and forth between the two rooms talking to one side at a time. This is done to keep the parties from blowing up at each other. The mediator spends time with each side trying to get them to modify their position and then taking the new offer back to the other side for consideration. Offers and counter-offers go back and forth, inching closer to each other until the parties reach something they can both agree on.
This is very different from “early mediation” which is typically done in the facilitative mediation style. Early mediation refers to mediation done earlier in the case to help the parties reach agreements before their legal cases have been fully worked up. The aim is often to help the parties create their own agreements and avoid getting into a litigation process. Many times the lawyers are not even present. Facilitative mediation refers to the mediator assisting the parties in communicating directly with each other rather than evaluating their legal positions, helping them get past “stuck” through the use of various tools like brainstorming and development of “key elements”.