A mediator is a facilitator who has the skill to work around or overcome obstacles to settlement created by parties or their counsel. In particular, when negotiations have gotten the parties close to a settlement, the skilled mediator is able to keep negotiations moving even when the parties are prepared to give up.

If the impasse concerns a disagreement about the likely outcome of a legal or factual issue, and all facilitative efforts at reconciling the parties on the disputed issue have failed, the mediator might suggest some evaluative device to assist the parties in compromising on that issue. Examples include an independent, third-party appraisal to establish the value of a disputed asset (on a binding or non-binding basis) or an opinion on a disputed legal issue by an expert in the field respected by both sides (this might even be the mediator herself), or a structured resolution of that limited issue by arbitration or reference, again on a binding or non-binding basis.

Originally published in Law.com on January 2, 2014.