The conventional wisdom in mediator training is that the mediator should play a passive role, like a potted plant, and let the parties and their counsel work out a settlement themselves under the mediator’s benign, smiling presence. Some mediation trainers invoke “mindfulness” techniques and Zen Buddhist philosophy as guideposts for the mediation process. This approach may work in certain pockets of the country like Marin County, Calif., but in commercial cases arising in New York, particularly those in Manhattan, it has no application at all.
A passive, Kumbaya-infused approach to mediation in the hard-bitten world of New York litigation will simply lead to organized chaos. In this article I will outline the active steps that a mediator should take to assure a successful resolution of a commercial dispute.