Millstein ADR

Approach to Mediation

Mr. Millstein summarizes his personal approach to mediation:

"I do not have a "one size fits all" approach to resolving commercial disputes.   My role as a mediator is to assist the parties to find a solution - the parties and their counsel must "own" the process, and trust the mediator.  But I do use my years of experience, as a lawyer, business person, father, husband, member of various communities.  My years growing and leading a business, particularly my years managing a law firm with many partners of, believe it or not, sizable egos, is one of the pillars of my experience.

The mediator facilitates dispute resolution by providing structure and a trusted partner to each of the participants.  Trust is not automatic, not is it easily earned in every instance.  The ultimate goal of mediation is the building of enough trust between the parties to resolve as many of the issues in their relationship as can be resolved, or where trust between the parties is impossible (and it frequently is), to provide a process where trust in the mediator forms a bridge to resolution.

I start with the parties' articulated positions, and before holding the first session, I try to get as much information as possible.  There is no substitute for preparation.  My approach is to understand the real business interests of the parties, and to ensure that those interests become an important part of the process, over time supplanting the other issues that drive the parties' behavior.  The most successful mediation is one which creates the most positive business potential for the parties - and that potential may be achieved in risk or cost avoidance, as well as obtaining monetary recoveries or uncovering new opportunities. Putting a dispute to rest generally has great business value in and of itself.

There is no "single pathway" to a successful mediation of a commercial dispute, but there are a few important guidelines to getting there.  First, a mediator must always listen and observe.  Often, the parties have the keys to the resolving the dispute, but they are simply not sure of how those keys will work together to unlock the dispute and move forward.  A mediator must acknowledge the history of the dispute while encouraging the parties to focus on the future.

Second, a given mediation may require a "less is more" approach or a more directed approach on the part of the mediator, depending on the sophistication of the parties, their need to hear from each other or from a neutral, and many other factors.  Often a solution to the dispute is only visible when the parties are open to creative ideas, even if those ideas will not necessarily be those adopted in the final agreement.

Finally, mediation involves hard work, determination and excellent communication and listening.  As both a litigator and a transactional lawyer during my 30 plus years of practice, I have a good grasp of the potential pitfalls of litigation as well as the value of interest-based negotiation.  The bottom line of my approach, however, is that my faith in my experience drives my approach: knowing when a suggestion or direction likely will be helpful, and when it would not; knowing how to let the parties communicate in joint session, and when to caucus; knowing how to let the process play out to a successful conclusion, and when and how to help drive it there."