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Log In / Register | Mar 17, 2018

In Search of a Strong Mediator

Arthur Pressman, an attorney who has represented mostly franchisors, is senior counsel at Nixon Peabody, a law firm with more than 600 attorneys. Presently serving as a mediation specialist, he writes that recently a flurry of posts to the American Bar Association Forum on Franchising ListServ seek a "strong" mediator. But a "strong" mediator is in the eye of the beholder. What do they have in mind? Pressman explores the question, terming the relevant phrase "ISO [in search of] strong mediator." 

He notes:

How clients look at mediators is less-nuanced [than the attorneys representing the two sides]—they want and expect a mediator to champion their views, or to show them a direction out of their dispute. As [John] Dienelt [a former ABA Forum on Franchising chair] recounts,

[N]o matter how many times, in how many different ways, I try to convince clients that mediators are supposed to be, and are, neutrals that have no decision-making power, I believe that clients instinctively view mediators as decision-makers and invariably look for someone who will favor their side, and not be truly neutral. No matter what clients say, I believe that what they truly want is a mediator who will browbeat the other side into agreeing essentially to their view of the case and their terms. Sometimes, I suppose, with strongwilled mediators (often former judges), this approach works. It doesn’t with me, and it never should. — Arthur Pressman,

Carmen Caruso, an attorney who represents franchisees and dealers, is the author of an informative article about the problems that go with secrecy in arbitration, one of the three methods of dispute resolution (mediation, arbitration, litigation). 

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