MEDIATION

COPYRIGHT 2008 MINA AKINS BREES

EDITED AND AMENDED 2010, 2011

BY

SAM GRAHAM J.D.

1. Introduction

A. Definition

Mediation is a forum in which an impartial person, the mediator, facilitates communication between parties to promote reconciliation, settlement, or understanding among them.

Additionally, mediation is a process whereby a mediator attempts to facilitate and assist the parties in resolving their dispute themselves. The process, although historically used over thousands of years in a variety of contexts. In the last fifty or sixty years the mediation process has had a resurgence in the United States in its utilization as a dispute resolution process at both the court and community levels.

Mediation is, in essence, facilitated negotiation. It is a process by which a neutral third party, the mediator, assists disputing parties in reaching a mutually satisfactory resolution. The term mediate is derived from the Latin “mediare” which means, “to be in the middle.” Certainly the mediator finds herself in the middle of a dispute between or among feuding parties, but mediation involves much more than placement of the mediator at the meeting of the parties.

Mediation should not be confused with arbitration or other ADR processes, although this sometimes occurs. Arbitration is an adjudicatory process in which the third-party neutral, the arbitrator, renders a decision after hearing proofs, evidence, testimony of witnesses, and arguments. The arbitration is not rigidly restricted by law as courtroom procedure, and the decision of the arbitrator may either be binding or non-binding.

In contrast to the adjudicatory process, the mediator is not a decision-maker. In the mediation process there are no formal proofs and arguments, and no decision is forthcoming from the mediator. The mediator should not impose his or her own judgment or opinion on the issues for that of the parties. The mediator should refrain from directly informing the parties about the probable outcome of the lawsuit, the strength of their claims or defenses, the monetary value of the parties’ positions, or the cost of various options for settlement. Even though this is the general rule for mediator conduct, many mediators in the United States during court-annexed mediation processes may be asked or expected by the parties and their attorneys to use the evaluative mediation style. This means that the mediator will engage in litigation risk analysis that embraces a consideration of the strengths and weaknesses of each party’s position and even the expected outcome in future adjudication. Many times litigation attorneys prefer that the mediator make observations and express opinions about the possible outcome of the pending litigation which is the subject matter of the mediation.

II. Appropriate Use of Mediation

A. When Mediation Works Best

Mediation is generally appropriate when a negotiated resolution is desirable but

Parties are unable to reach agreement without the intervention of a third-party neutral.

There are many important considerations when the parties agree to mediate disputes.

Several to be considered are as follows:

1. Continuing relationships. It is often stated that mediation is best suited for parties that have a continuing relationship or who wish to maintain a relationship whether it be in business or family matters. This is because through mediation, parties are given a model for resolving future disputes. These may include family, employment/labor, health care, neighborhood and general business matters.

2. “One-shot” deals. Mediation has also proven successful in “one-shot” deals such as personal injury, worker’s compensation or consumer complaints which involve non-continuing relationships. Many businesses might prefer that a dispute with a client, injured party or employee remain private and out of the media. A confidential mediation which results in a resolution of the dispute accomplishes this goal.

3. Environmental, regulatory, and public policy disputes. Mediation has also been effective for handling environmental and regulatory disputes. These include disputes involving either public or private parties, or both. Mediation, or a related process called consensus building, is utilized in all types of public policy matters. Public policy consensus building involves disputes between governmental entities and citizens or multiple governmental entities and various other interest groups of stakeholders.

4. Small claims. Some disputes are better resolved outside the courtroom because of the small amounts in controversy and the overburdened small claims courts. Most small claims can be expeditiously handled through mediation without the parties having to resort to the judicial system. Law or graduate school mediation clinics as well as local community dispute resolution centers often mediate these types of cases at no cost to the parties. The process works effectively in disputes between neighbors or landlords and tenants.

5. Complex and multi-party litigation. Some cases are too large for the courts to handle well because they clog the state or federal court dockets for weeks or

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Months. Complex and multi-party litigation can benefit from a carefully

structured mediation process in which the mediator works with the parties and

their attorneys to define the issues which need to be resolved. When the parties and their attorneys have conducted a certain level of discovery and feel prepared for the mediation session, it is possible for the parties to save a significant amount of time and money by utilizing the mediation process.

III. Benefits of Mediation

A. Mediation can be a creative dispute resolution process, which offers many benefits unavailable with other procedures. Mediation allows the parties and their attorneys to think “outside the box” and create resolutions to disputes which may not be available in a courtroom setting. Benefits of the process include:

1. Helping to maintain an ongoing relationship that the parties wish to maintain;

2. Helping to establish an ongoing relationship;

3. Assisting the parties who prefer to avoid a legal precedent;

4. Assuring the parties that the privacy and confidentiality about the nature of the dispute, the agreement, or both are honored as part of the mediation process;

5. Assisting the parties with their need for open communication and information exchange;

6. Assisting the parties in identifying common interests in their disputes;

7. Assisting the parties in their negotiation of terms to resolve their disputes and an example is when the mediator tells the parties “this is your process” or “this is your opportunity to determine the terms of your agreement”;

8. Assist the parties and their attorneys with thinking creatively to resolve their dispute;

9. Encouraging the parties to express their desire for self-determination and to resolve their dispute by creating their own terms for settlement and securing their own fate without judge or jury imposing a decision upon them;

10. Suggesting to the parties or their counsel the possibility of unrealistic assessments of their case and offering questions which assist with formulating

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creative resolutions for their dispute;

11. Reminding the parties that despite their differences, there is a mutual goal to achieve a satisfactory resolution.

IV. Role of the Mediator

A. Basic Responsibilities

The role of the mediator is what distinguishes the process of mediation from other dispute resolution processes. The mediator is a facilitator, and should not impose his or her own judgment of the issues upon that of the parties. Certainly in reaching the goals of mediation, it is also imperative that the mediator be a skilled communicator. In fact, it is often due to a lack of or miscommunication that disputes exist and are unable to be resolved. Therefore, in the role of a facilitator, the mediator must not only communicate with the parties, but also assist the parties in their communication with one another.

The term “facilitate” is defined as “to make easy or easier…to lighten the work of; assist; help.” The mediator assists the parties in making the conflict resolution process easier by guiding the parties’ negotiation with each other. The mediator does not have a vested interest in the particular resolution, does not have to render a decision, and does not have to and should not take a position in the bargaining or negotiation of the parties. This enables a mediator to employ problem-solving techniques that otherwise might get lost in the one-on-one positional negotiations.

In most cases, a mediator attempts to move parties from an adversarial negotiation process to a more integrative and problem-solving mode. In doing so, the mediator should help the parties identify their underlying interests. In most disputes parties will take a position. This is what happened and what caused the dispute and this is what they want and why. The parties try to establish facts, and the basis for a deserved outcome. The positions may change as the dispute and its resolution develops, but most parties do not fully explore the reasons or underlying interests behind their positions. Positions are what people want and interests are why they want it. Mediators must work toward getting all parties to look at not only their positions but also at their interests. This movement away from positions can also steer the parties away from viewing the dispute as a right-wrong dichotomy.

As the mediator uncovers the underlying interests of the parties, certain alternatives or positions may be found which are better suited for resolving the dispute than those formerly proposed. The mediator should assist the parties in developing and exploring these alternatives as possible resolutions. The mediator offers creative ideas for resolution.

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B. Objectives of the Mediator

During the mediation process, the mediator has several specific objectives that he/she may want to achieve during the process which may include:

1. Establish and maintain a constructive environment for the mediation and

settlement negotiations between the parties. This includes keeping the negotiations going and avoiding or overcoming impasses between the parties.

The mediator’s responsibility is to keep the peace and avoid hostilities between the parties;

2. Help the parties clarify their values and arrive at a responsible settlement range (i.e., bottom lines or “what” they will settle for). This includes keying in on the parties’ interests and analyzing what the alternative to a mediated agreement may mean. For example, utilizing a cost/benefit analysis, are the parties better off reaching an agreement in mediation or going to court;

3. Deflate unreasonable positions and assist in loosening commitments. This includes controlling or neutralizing power imbalances and utilizing face-saving techniques when necessary. Small things like where the parties sit at the negotiation table, number of representatives at the negotiations for each side, and the names used at the mediation create power imbalance. The mediator becomes the equalizer in these situations;

4. Seek joint gains or options for mutual benefit. Active listening and restatement of the parties’ interests in clear terms can often achieve this objective;

5. Collect and/or convey with the parties’ approval selected confidential information when in a caucus/individual session, i.e., when the mediator meets with or speaks to the parties separately. How the mediator utilizes information acquired in a caucus is important. The mediator must keep in check potential manipulation on his or her own part, as well as by any of the parties. The mediator must gain approval of the parties to convey confidential information to the other party or parties;

6. The mediator is obliged to reality-test all agreements. This involves assuring that the parties are capable of follow-through and compliance. The mediator should always ask the question, “Can the agreement be performed?”

C. Impartiality of the Mediator

A mediator risks losing his or her impartiality when he/she begins to impose his/her

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own judgments and/or “perceived” best possible solutions on the parties. The mediator also risks imposing an unworkable solution upon the parties, who may not admit to the mediator why the mediator’s solution will not work. The mediator cannot and should not compel or coerce the parties into an agreement.

This does not mean, however, that the mediator should throw his/her common sense out the window. The mediator, as the facilitator, controls the process by allowing the parties the opportunity to fully develop their options and to test all possible solutions.

There is much debate about whether or not the mediator should assure that agreements are fair and just. The debate of the mediator’s role in ensuring fairness is a continuing one. (1) One side of the debate argues for the parties resolving their dispute in whatever fashion they may choose even if one is foregoing a legal right or entitlement The decision is that party’s own choice to make. (2) The other side of the debate argues that since mediation resolves disputes “in the shadow of the law,” at a minimum the mediators should endorse only a fair result. Or a result which in some way comports with expected or likely court outcome. Problems can arise because what is perceived as fair and just may vary with the mediator and may vary with the parties themselves. So the question is whether the mediator has a duty or responsibility to inform the parties of a term of the agreement which may be unlawful? Or if the agreement is unfair?

Therefore, some commentators suggest that the mediator should raise questions as to the feasibility or equities of all proposed agreements. The mediator should make sure the parties fully understand the mediation process and that they reach agreements based upon sufficient knowledge and information that the parties make informed decisions. The mediator can postpone or reschedule other mediation sessions in order to allow the parties additional time to acquire whatever information may be necessary for settlement purposes.

An example of the “fairness dilemma” occurs when one party to a divorce proceeding is feeling guilty because the marriage is breaking up so the emotional party does not want money or assets to which he/she is legally entitled, and the mediator knows that later after the party regains his/her composure, he/she will regret this decision to forego the money or assets to which they are entitled. Of course, if the party is represented by counsel, it is the attorney’s responsibility to advise his client as to what is legal and fair.

The mediator should also allow the parties to assess and reality-test all possible solutions. The mediator should restate the terms of the agreement in order for the parties to analyze all of its implications. In cases where the mediator is of the opinion that the agreement is unfair, unethical or illegal, most codes of conduct or ethical considerations for mediators urge that the mediator withdraw from the process.

The mediator walks a fine line as an impartial facilitator. Mediator impartiality is maintained by how the mediator chooses to utilize techniques and in how questions and

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restatements of informal options and positions are phrased. Most mediators try to couch dialogue in the most nonjudgmental way possible, as there are always at least two ways of saying the same thing. Any biases and opinions should be continually kept in check by the mediator.

The impartial mediator is not a judge, nor does the mediator represent any particular parties’ interest. Appearances of impropriety should be avoided; any personal interests possibly affected by the subject matter in dispute and/or personal biases should be disclosed prior to mediation and ex parte discussions without prior consent of all the parties should be avoided. A mediator should never speak privately with only one of the parties unless the other party knows that the conversation will take place and/or the conversation is part of a private caucus session during the mediation process. A mediator should always ask the question “how will this action be viewed by the parties in this matter?” Additionally, if the mediator feels that he/she can not be impartial the mediator should not take the case for mediation.

Finally, a mediator should not feel like he/she is a failure in a mediation process if the parties do not enter into an agreement. Many times starting the communications process gives the parties motivation to continue discussions which may ultimately result in resolution.