Entrances and Exits: Strategies to Pursue outside the Mediation

By Ittig, Judith B. | Dispute Resolution Journal, May-July 2007 | Go to article overview

Entrances and Exits: Strategies to Pursue outside the Mediation


Ittig, Judith B., Dispute Resolution Journal


Steps mediators and attorneys can take to improve the chances of reaching a settlement.

There are steps, sometimes overlooked by mediators and attorneys, that can be taken outside the mediation session to help ensure that a settlement is reached. By taking some or all of these steps, the parties, their advocates, and the mediator can make the mediation more likely to succeed.

PRE-MEDIATION:WHAT PARTIES AND COUNSEL CAN ACCOMPLISH WITH THEMEDIATOR

Step #1: Getting the Right Mediator

a. Interview the mediator

Counsel can and should interview prospective mediators. The AAA has a fine roster of neutrals who are highly qualified as mediators. Each possesses different skills and backgrounds.

Each side should determine what talents the mediator needs to have for their dispute. Technical knowledge? Legal experience? Financial expertise?

The AAA provides information to the parties about the mediator's qualifications and experience. The interview, which can be done ex parte, is essential as it can also reveal a lot about the mediator's style and approach.

During the interview, counsel should observe the mediator to see if he or she is a good listener. Does the mediator seem interested and enthusiastic? Does he or she inspire confidence?

Counsel should ask the mediator about his or her approach to mediation. Is the mediator willing to offer an evaluation and suggest possible settlement options if asked? The mediator can also be asked how he or she deals with displays of emotion during mediation?

b. Consider having co-mediators

There are instances where employing two mediators should be considered. Candidates for co-mediation are cases involving multiple parties, large numbers of items in dispute and parties whose roles in the disputes show significant differences in their backgrounds and the manner in which they would evaluate settlement options.

If the parties are considering co-mediation, counsel should ask each prospective mediator about his or her experience with co-mediation. To be effective, a co-mediator must be willing to share mediation authority with another mediator.

Step #2: Drafting the Mediation Rules

A written mediation agreement should contain the parties' and the mediator's common understanding of the ground rules for the mediation. Even where the mediator has a standard mediation agreement, counsel may want to include additional terms.

The mediation agreement should do the following:

a. Comply with state law and bar association rules

As mediation becomes more common, states are enacting laws to govern its use. The mediation agreement should comply with state law and bar association rules governing mediation in that jurisdiction. Some states require mediators to obtain a signed acknowledgment from the parties in advance of the mediation evidencing their understanding that the mediator is not acting as legal counsel. These rules say that the mediator cannot provide legal advice. In Virginia attorney mediators cannot express opinions about the merits of the disputes unless the parties have agreed in writing, in advance, that the mediator may do so.

b. Deal with confidentiality

There are two aspects to confidentiality that need to be addressed: the mediator's obligation to maintain confidentiality and the parties' ability to use information gained in the mediation.

The mediation agreement should clarify that the mediator will keep confidential the information and discussions. It should also address whether the parties will be bound not to reveal their settlement efforts to others outside the mediation and whether they can use information obtained in the mediation for other purposes. If the mediation results in a settlement, similar terms may be included in the settlement agreement, but provision must be made for some disclosure in the event enforcement or use of the settlement in court or arbitration is necessary. …

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