Two trial attorneys and negotiators recommended that the mediator or negotiator “step to the plate,” [18] and be aggressive and make a big issue out of the discrimination when calling it to their attention. [19] Another trial attorney, who is also a mediator, stated that he would stop the mediation and reschedule with a different mediator. [20]
They also recommend that mediators reflect whether their formulation is constructive and fits the disputants; that they test the validity and suitability of their formulation (often with the parties); and finally, that they discuss and collaborate with the parties in choosing the next step. (Lang & Taylor 2000)
Benjamin also believes that: “a good mediator reads the conflict between the parties and devises a strategy that effectively uses the parties’ force and energy to negotiate the conflict.” (Benjamin 1999) According to Benjamin, the philosophy that prevails in the mediation field is humanistic or rationalistic.
A mediator is a person who has a background in law, psychology, and social work. It is with this extensive knowledge that the mediator is able to provide the parties involved in a conflict with a clear sense of the underlying issues.
A MEDIATOR SHOULD REFRAIN FROM PROVIDING LEGAL ADVICE. A mediator should ensure that the parties understand that the mediator's role is that of neutral intermediary, not that of representative of or advocate for any party. A mediator should not offer legal advice to a party.
It is not necessary to prove that one party is at fault. The most difficult part of the mediation process is to get people to accept that mediation can be an effective way to resolve their dispute. Most disputes tend to be very personal and some people want their day in court, whatever the cost.
3 Things You Should Never Say in a Mediation Opening Statement1 — “It's all your fault.” ... 2 — “Here is a bunch of new information that changes the value of the case.” ... 3 — “I know we demanded (offered) $x before, but we are going to have to demand more (offer less) now.”
The most important ethical issues surrounding the mediations in which lawyers participate relate to: (1) the appropriate level of candor for the dialogue that occurs during the mediations and (2) the appropriate division of authority between lawyer and client before and during the mediations.
One of the main disadvantages of mediation is a lack of formal rules, which can make it difficult for two disagreeing parties to reach a compromise.
How to Reach a Custody Agreement with a NarcissistContact a good lawyer familiar with narcissistic behavior.Limit contact with your ex as much as possible, ideally only communicating during the mediation process. ... Avoid playing the game, if at all possible.Remain as calm as you can. ... Document everything.
Mediation resolves most tort type problems 85% of the time. It resolves TRO and similar issues about 98% of the time. b) within limits, the quality of the mediator is not a significant factor in whether or not mediation works. Statistically, almost all mediators show about the same success rate.
Mediation: Ten Rules for SuccessRule 1: The decision makers must participate. ... Rule 2: The important documents must be physically present. ... Rule 3: Be right, but only to a point. ... Rule 4: Build a deal. ... Rule 5: Treat the other party with respect. ... Rule 6: Be persuasive. ... Rule 7: Focus on interests.More items...
Some of the questions that a mediator ought to ask counsel for the parties during the mediation include the following. What are your/your client's goals for this mediation? What would help you achieve your goals? What are the obstacles to resolving the dispute?
1 A Mediator must conduct mediation in keeping with following qualities: diligence, timeliness, safety, presence of the appropriate participants, party participation, procedural fairness, party competency, honesty and mutual respect among all participants.
The mediator must remain impartial in all aspects of mediation: both in communicating with the parties (the one that has spoken and the other that has not yet), in questions being asked, in rephrasing positions or interests, and even in the layout of furniture or seating.
A mediator should not render a decision on the issues in dispute. The primary responsibility for the resolution of a dispute rests with the parties. mediator should not coerce a party in anyway. A mediator may make suggestions, but all settlement decisions are to be made voluntarily by the parties themselves.
Don’t assume joint sessions are nothing more than attacking opening statements. There is much that can be done together beyond traditional openings. Don’t rule out all opening statements because you have had bad experiences with them before. Think about whether there is anything either side could say that would be productive. Avoid saying alienating things, and say difficult things in the least alienating way possible. Set ground rules to avoid attacking openings. Remember that avoiding saying unwelcome things, by having the mediator say them, merely transfers the other party’s resentment from counsel to the mediator.
In general, mediation is a process that looks forward, while blame looks backwards. Don’t make arguments that will be most persuasive to the opposing party; instead, make arguments that would be most persuasive to a neutral party.
The problem: Counsel often make ineffective mediation arguments, either because they are only focused on convincing the mediator, or because they do not appreciate the difference between the best arguments in court, and the best arguments in mediation.
Best approach to mediation statements: Spend the time to prepare a strong, well thought out, succinct, persuasive, non-bombastic, and non-conclusory statement. Remember that mediation statements are your opportunity to educate all members of the other side, and to speak to them in depth.
And, even if the other party will not share their mediation statement, it can give you a big advantage if you share your statement, if it is persuasive. Insult the other side, either purposely, inadvertently, or because you simply think they need to be told the “truth” about themselves.
The problem: Many lawyers perceive information to be power, and believe that keeping information from the other side, and sometimes even from the mediator, gives them power. As a result, they shy from exchanging mediation statements, prefer to avoid joint sessions, and avoid sharing as much as possible with the other side.
The risk: Skipping joint sessions skips many of the major benefits of mediation. Joint sessions are a unique opportunity to size up the various players on the other side (and the differences between them), to speak directly to represented parties and key decision-makers (even if appearing not to), to set a positive tone for resolution, to assess how the other side feels about their arguments, to better understand the other side’s true motivations, to look for unexpected common ground, to clear up misunderstandings and to clarify numbers-related issues (such as damages calculations). By definition, it takes twice as long to convey information through the mediator than to everyone at a joint session.
Some respondents recommended that if race, prejudice, or discrimination becomes an issue in a mediation or settlement negotiation, the mediator should meet the issues “head on” by bringing them to the table. [1] One stated that the mediator should be sensitive towards the issues from the beginning and, after addressing it with the parties, should decide whether the mediation should even start. [9] Another would go to caucus and address the issue in private with the discriminating party. [10] Under some circumstances, another would stop the mediation altogether, [11] while another would first raise her objections and attempt to make the discriminating party accountable before ending the mediation. [12]
Other respondents recommended going beyond diplomacy and obliqueness. A respondent mediator would more gently emphasize human dignity and respect and “second chances” when calling justice issues to the parties’ attention. [24] This approach, without this respondent labeling it as such, would go in par with the humanistic model of mediation promoted by Professor Mark Umbreit (Umbreit 1995).
The book, The Making of a Mediator: Developing Artistry in Practice, tells us about outcome-determining, critical moments in mediation where mediators sense the moment is “pivotal” and that they should respond quickly by choosing from a number of available responses. Facing perceived prejudice and discrimination in mediation might be an example of such a critical moment. At such times, Lang and Taylor recommend that mediators acknowledge that it is a critical moment and why. They also recommend that mediators reflect whether their formulation is constructive and fits the disputants; that they test the validity and suitability of their formulation (often with the parties); and finally, that they discuss and collaborate with the parties in choosing the next step. (Lang & Taylor 2000)
[25] Transformative mediation is a movement within the mediation field that emphasizes a gentle, laissez-faire approach by a mediator who encourages and highlights moments of empowerment and recognition between the parties. (Bush & Folger & 1994, 2005) (Rendon & Dougherty 2000).
Some respondents suggested for the mediator to act before the mediation session or at the time when the mediator is learning about the parties and facts surrounding the dispute. They suggested the mediator match the parties, as much as possible, in race, nationality or any other distinguishing, relevant factors. [4] Another recommendation was to use a co-mediator. [5] Others suggested that mediators seek to learn more, prior to the mediation, about cross-cultural and diversity issues [6] or about the sociological, historical, cultural and geographic facts surrounding the mediation. [7]
Among the intrinsic beliefs of humanistic mediation is the belief in the inherent dignity and self-determination of the parties. Humanistic mediation is often used in restorative justice and victim-offender mediations. Among its tenets are the connectedness of all things and our humanity; the importance of mediator presence and connectedness while facilitating conflict resolution; the healing power of mediation; the mediator’s availability to help parties share feelings; the belief that most people desire to live peacefully and to grow through life experiences; and the existence of people’s inner reservoirs of strength to overcome adversity, grow, and help others.
Professor Gunning recommends activist mediators who discuss these issues at the beginning of mediation in the same manner they discuss common rules such as confidentiality, good faith and others. (Gunning 2004) Professors Fisher & Ury advise negotiators not to teach difficult people a lesson by emulating their unconstructive behavior, but instead act in a way “designed to model and encourage the behavior we would prefer and to avoid any reward for the behavior we dislike….” (Fisher & Ury 1991)
The short answer to this question is: yes, you do still need a lawyer when participating in mediation.
The goal of mediation is to arrive at a separation agreement. It is not uncommon to see a separation agreement that is created in parts: some parties will first make a parenting agreement, while others will work on a property agreement first. Eventually, all of the pieces come together to make one fulsome agreement.
Mediators understand it is a fine line. Mediator expect good, tough zealous representation, but don’t insult the Mediator’s intelligence and her knowledge about the subject matter of the dispute and the law (which is why you chose her). Mediators want frank and candid discussion of the strengths and weaknesses of the case. That sometimes means pulling the lawyers out of the rooms to have those discussions. Good lawyers want that from the Mediator, even in front of their client, because no matter how many times a lawyer may have told a client about the weaknesses in a case, there is something about having an experienced Mediator telling the client, face to face, the same thing and that all of the great lawyering in the world (of course) cannot change a set of facts or the law. Your job as counsel is not to show the Mediator how smart you are and how you are going to kick the other side’s backside in court, but to see if there is a way to reach your client’s goal of getting the case resolved as efficiently as possible. Rare is the client who willingly will spend unlimited legal fees and allow the company’s key workers to spend hundreds of hours in discovery, depositions, and put his business into the hands of a third party, whether a Judge, Arbitrator or jury. Sometimes it is not just about the money—but most of the time it is about the money.
If you get close but no deal, don’t just throw your mediation folder off to side and curse the other side and lawyer (and the Mediator) for not being reasonable and acting in bad faith. Many Mediators, especially if the parties got close to a deal, will ask if they can make a few calls and see if a deal is still possible. Yes, it costs money, but remember you are splitting the Mediator’s fee with the other side. One suggestion is to provide a written email or summary for your client representative (include estimates or budgets for future legal fees), and which may also go to other’s in your representative’s organization who have a say so in the dispute but were not present at the Mediation.
A long day of Mediation can be derailed with last minute issues which should have been identified early in the day. If money will change hands, when? Many times, the parties have agonized over the amount, only to have the paying party say “by the way, I don’t have that money now, I have to pay it over time.” The other side then explodes, cries “bad faith” 4 and starts thinking about piercing the corporate veil. Emotions then get into the way of a deal that appeared to be done. Tax returns or financial statements to establish financial issues or poverty cannot magically appear at 7:00pm, and when there may be a need for a covenant not to execute and discussion of collateral. How important is a non-disparagement clause and/or limitation on social media (or withdrawal of a social media post)? What about indemnification? Exactly what claims are going to be released, which can be a real issue especially in commercial disputes like construction cases. Allowing such seminal issues to fester until late in the game can be a real deal breaker, and it also really upsets the Mediator who has worked hard to get the parties to agree to the basic deal terms.
Every dispute is different. There are no hard and fast rules as to when mediation should be considered. If the parties have a history; are in an ongoing relationship; will deal with each other in the future; and the legal fees/expenses will be substantial, it may make sense to try to set up an “early” mediation, even prior to the filing of a lawsuit. Sometimes the contract’s ADR clause requires mediation prior to litigation/arbitration. While those clauses can be waived, the issue is always whether the parties/counsel have enough information about the dispute to make good business decisions about settlement. Many times, I have heard counsel say, “I will be able to get an expert to support our claim,” which is not very persuasive to the other side when it is an expert driven dispute. Sometimes there is a real concern that “final” offers 1 made in an early mediation become sticking points for future settlement discussions. Early mediations can sometimes cause more problems, and make the parties madder at each other, especially with ego-driven clients (and yes, lawyers!). I have found that the only way an early mediation can work is if there is a good working relationship between the lawyers who, working with an experienced Mediator, can help manage the entire process (and their clients) to try to get an acceptable settlement at this early stage of a dispute.
Of course, all disputes that are submitted to mediation do not reach a “global” settlement, even for very valid reasons. But you and your client have just spent an entire day reviewing/discussing the pros and cons of your case and complaining about the other side (and probably the Mediator). While certainly you can leave the mediation with some additional knowledge about the other side’s case, you should think, before you walk out the door, about whether or not the Mediator can help both sides reach agreements on non-global issues which will save money and perhaps push the parties closer to a global deal down the line. Can discovery disputes be resolved? Perhaps settle some but not all the disputed issues. How many depositions are really needed? What about shifting the case from litigation to binding arbitration? If a major factor is a pending summary judgment motion, maybe schedule another mediation. Put on your litigator thinking hat before you walk out the mediation door.
Yes, you must present your case to the Mediator and impress your client. In Mediation, however, lawyers frequently fail to listen to what the Mediator has to say and more importantly, what the Mediator is saying about what’s going on in the other room. What’s the temperature in the other room? Is the other lawyer being helpful? Is the client in that room listening to her lawyer and the Mediator? Is it really all about money? What are the key issues. Are there non-monetary points that may be crucial to the other side, but your client could care less about? Those may help get over an impasse about money. Be confident that the Mediator is doing his best to convey your points and arguments and is being just as hard on the other side. By listening and asking questions you can learn a lot more about the strength and weaknesses of not just your case, but the other side’s case as well. You are paying the Mediator: take advantage of his knowledge and expertise.
To be clear, great Mediation advocacy is not THE most important element in getting a deal done, but it can be a major factor. Be careful out there.