- within Litigation, Mediation & Arbitration, Employment and HR and International Law topic(s)
- in United States
In a recent webinar, JAMS mediator and arbitrator Joseph Farina, Retired Judge, Eleventh Judicial Circuit of Florida, shared practical strategies for handling some of the toughest mediation challenges. With more than 30 years on the bench and over a decade as a mediator, Mr. Farina has built a reputation for professionalism, leadership and results. He offers his top takeaways from the "Advanced Mediation Strategies for Handling the Toughest Situations" course offered during the 32nd Dispute Resolution Center Conference, which had the theme "Strategies for Solutions."
1. Eliminate unrealistic expectations with preparation.
"I get engaged in reality-testing and risk assessment ... actually creating a list of the good and the bad and the ugly for each of the parties."
Mr. Farina stressed that unrealistic expectations are inevitable in mediation. His approach is to prepare in advance, reality-test positions and ask pointed questions that challenge assumptions.
2. Defuse the "Rambo" litigator or party.
"Mediators should be true to themselves. To thine own self be true."
Aggressive behavior can derail progress, but Mr. Farina focuses on reframing and leaning on attorneys to help redirect their clients. He also advises mediators to stay true to their own style and take time to recenter between sessions.
3. Avoid the trap of "take it or leave it" offers.
"You'll start all over. You'll start at zero. And all of the time and effort that we've invested today will be for naught."
Mr. Farina discourages final offers because they shut down options and waste progress. Instead, he reminds parties of the benefits of mediation—control, confidentiality and certainty—compared with litigation.
4. Use attorney-only conferences to prevent impasse.
"Attorney conferences really do narrow the road of disagreement and expand the avenue for settlement."
When negotiations stall, Mr. Farina brings attorneys together to identify obstacles and reframe the discussion. Even partial settlements, he notes, are meaningful wins that save time and resources.
5. Uphold self-determination and neutrality.
"One of the cardinal principles of mediation is self-determination. And self-determination is by the party, not the lawyer."
For Mr. Farina, self-determination by the parties—not their lawyers—is central to mediation. He also believes settlement drafting is best left to attorneys, with mediators stepping in only as needed to resolve disputes over wording.
Final thought: Mr. Farina's guidance underscores the importance of preparation, empathy and creative interventions. By staying grounded and redirecting energy productively, mediators can turn even the toughest situations into opportunities for resolution.
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