Continued from Part I. There is also a school of thought that it is perfectly valid for spouses or other parties to settle a case based on their sense of what is fair, without considering necessarily what they are entitled to under the law. There are some limitations to this – for example orders regarding children have certain requirements and the Judge must sign off on agreements parents reach regarding the children, but if the parents are able to reach an agreement, most times it is something that can be included or incorporated in the Court’s order.
If both sides in a case are viewing the case through completely accurate lenses, and there is no uncertainty about what the law says or the facts of the case, both parties could see the same range of possible settlement options and then it would be a negotiation process, decided by what issues are most important to each party, or by the negotiation approaches or skills of both sides. Many times, the two sides to a case enter a negotiation or mediation on somewhat opposite poles or ends of the spectrum regarding how issues in the case should be resolved — they see the case differently, probably for a number reasons including each party and their attorney probably identifying more with their side or position.
The mediator is a third party, a neutral in the sense of not supposing to favor one person over the other, who will have their own view of the case, or who can ask questions or offer alternatives, and this tends to push each party towards a solution. A mediator can try very hard to not share their thoughts about the case they’re mediating, but there is an adage that you cannot not communicate. Different mediators approach differently how much they share of themselves in the mediation, whether by offering information, options, asking questions, or engaging personally with the parties, but there is a pretty good chance that one way or the other you will be influenced by the mediator, or the process. That might seem arbitrary to allow one person hearing the case for the first time to influence you in that way, but the process also involves the two parties; there is influence going back and forth in different directions, and the mediator has an ethical obligation to not participate in the process in a way that takes away parties’ self-determination. Also, some mediations, especially pre-suit mediations, are not decided all in one day. There can be one session, and then the parties go away and everyone, including the mediator thinks about the case, and everyone resumes again in a few days, or next week for another session.
Another factor to consider, is that if the case goes to trial, the case will be decided by one person, hearing the case that day or for the duration of the trial, based on whatever thoughts they have about that case at that time – i.e. the Judge.