Information as often as necessary to be sure that one or both of the parties hear it. Parties

often do not really “hear” their own interests when doing so would open up areas of possible agreement.

The mediator, once he/she has identified the issues in controversy and with acknowledge of the parties’ interests, should guide the parties in exploring all available alternatives for resolution. This includes facilitating the parties in assessing their options and most likely outcomes if no mediated agreement is reached.

As stated previously herein the caucus is the term defining separate and confidential meetings between the mediator and one of the parties. It has also been termed “shuttle diplomacy,” as the mediator shuttles between the parties in an effort to resolve the dispute. Although the frequency of use is debated, the caucus is an effective tool of mediation. In multi-party litigation, it is sometimes the only practical method. The mediator often attempts to direct the communication between the parties whenever possible and caucus when it is necessary for discovering underlying interests or for movement towards an agreement. Caucus should be considered when other techniques have failed in gaining movement; when there is multi-party involvement; or when there is some other factor which makes a joint session with all of the parties present impractical or impossible.

Caucuses have been used effectively when the parties reach an impasse and when there is confidential information to be shared alone with the mediator. It is also useful for exploring parties’ bottom lines and alternatives to not reaching a mediated agreement, and for neutralizing power imbalances.

To avoid any appearance of partiality, the mediator should first make sure the purpose and utilization of the caucus is defined in the opening statement. In most cases, the mediator will caucus individually with each party involved so that no one will fell left out.

The mediator should ensure that all proposed alternatives are explored fully. Some questions the mediator may ask the parties include: Will they withstand the test of time? Are all necessary parties involved? Which alternative will most fully satisfy all parties’ objectives?

There are at least three possibilities at the end of any mediation session. First, the parties may reach an agreement. The mediator generally ensures that the agreement is workable from the participants’ perspectives and that all parties necessary to the agreement are present. When parties are not represented by counsel, the mediator should also determine whether the parties need attorneys to be involved in the approval or writing of the agreement.

A second possibility, which often is advisable, is to have additional mediation

sessions. This is often the case in the traditional model of family or divorce mediation.

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This determination may be made at the closure of any given session. The time and place of future sessions should be set. Tasks should be assigned as to what is necessary before the next session. For example: Is further discovery necessary? Is documentation necessary? Are there other parties who need to be involved? Is expert opinion or information needed?

Third, sometimes even the most effective mediator cannot assist the parties in reaching an agreement. Most mediators will close on the most positive note possible even if no agreement is forthcoming and future sessions would be unworkable. Experience has demonstrated that even in those instances, a final resolution is often reached at some point after the mediation.

F. Role of the Attorneys/Lawyers for the Parties in the Mediation Process

There is a common misconception that alternative dispute resolution supplants the traditional role of the attorney as an advocate. An attorney, as advocate, should be well prepared on all aspects of the case including the facts, the issues and the legal implications and ramifications. This does not change when an attorney is involved in mediation. As cases are negotiated, so are they mediated. The utilization of and referral to mediation is not an excuse for being unprepared or unfamiliar with the case. However it is also imperative in the mediation context that the attorney look beyond the legalized case and also explore the client’s objectives and interests. In other words, the lawyer should be looking at the various ways to solve the problem with the client.

Prior to the mediation, the attorney should analyze his or her case. The attorney should first focus on what the client’s position is. Then, by contemplating the “why” of a particular position, the attorney can look toward developing the interests of the client. The attorney should formulate and list all possible alternatives which might meet those interests and should ask what the result of not reaching an agreement in mediation will be: What will it mean for the client in terms of cost, both objective and personal? What will be the likelihood of success at trial, and at what cost? Is the case going to settle eventually? What are the probabilities associated with each option and consequence?

Next, the attorney should analyze the other side’s case in the same way. What are the strong and weak points of both sides? Additionally, the attorney should try to determine the areas of possible agreement and give and take and discuss these matters with his/her client.

The attorney should find out what the particular mediation format will be, because there are substantial variations. Will the mediation be confidential? Are there written guidelines or other governing policies? If so, the attorney should acquire these before the mediation session and discuss them fully with his or her client. Will the mediation be face-to-face with all the parties present, or will it be typified by a caucus method or shuttle mediation?

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In some cases, attorneys may actively participate or provide input in developing the format of mediation, both pre-dispute and post-dispute. This can include utilizing mediation clauses in contracts, temporary orders and decrees.

The role of the attorney in a mediation session may range from active participant to observer/advisor. The lawyer-advocate attends the mediation on behalf of her client, and it is important that she be provided an opportunity to present the case as she sees it. Unfortunately, very aggressive presentations by advocates tend to obstruct settlement. As more lawyers become educated and familiar with the mediation process, however, they realize that advocacy in mediation is not the same as advocacy in a trial or in arbitration. Where the neutral third party is a decision-maker, the advocate’s role is adversarial. But mediation is a non-adversarial approach to conflict resolution, thus the lawyer’s role should be different. Nonetheless, some lawyers still choose to utilize a competitive or adversarial approach in opening statements at mediation. In many cases, mediators attempt to constrain some of this prior to the presentation. The mediator also reinforces the non-adversarial nature of the attorney’s role during the mediator’s introduction. Many lawyers feel compelled to present the case in an adversarial manner because they assume that is what the client expects. And, in fact, many clients probably do expect this, not realizing the considerable difference between a trial and mediation. Part of the mediator’s role is to reduce the aggressiveness of the presentations by convincing the lawyers and clients that such an approach is not necessary in the mediation process.

The attorney should prepare the client for the mediation process. Prior to the mediation, it is appropriate for the attorney and client to brainstorm about the legal issues, client’s interests and opposing client’s interests. The attorney should explain the mediation process to the client, distinguishing it from the typical courtroom procedure and decorum that the client may be expecting. The attorney should review with the client what the participation levels of both the client and the attorney will be in the process. The mediation is likely the first time the parties have heard the case presented by the opposing lawyer. Therefore the parties should be encouraged to listen. By doing so, a party may see the matter in a different light, or at least understand the other side better, which in turn may open up discussions and movement at subsequent stages of the process. Further, issues of confidentiality and other tactical strategies should be examined before the mediation takes place. Finally, the client should be assured that the mediation is normally supplemental to any other legal course of action, and full participation in the mediation process will not prejudice the client’s rights.

G. Confidentiality Issues

One of the most often cited benefits of the use of alternative dispute resolution processes is the confidentiality surrounding them. This is even more pronounced in terms of the mediation process than other alternative dispute resolution procedures because mediation has always been considered a confidential process. While the use of mediation began with the assumption of a cloak of confidentiality, the validity of that assumption is

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not clear. With more analysis over the years, the issue of confidentiality in mediation has

grown somewhat confusing. In today’s mediation climate not all things are confidential. A mediator may have a duty to disclose certain matters discussed in mediation. Many of these considerations and conflicts have contributed to the dramatic increase in attention given to this aspect of mediation. Confidentiality has become such an important topic in mediation that in the effort to draft a Uniform or Model Act on Mediation, the National Conference of Commissioners on Uniform State Laws has determined that a primary focus would be on confidentiality.

H. Outcome of Mediation and Issues of Enforceability

The effect of the resolution or non-resolution of a mediated dispute might vary depending on factors such as applicable statutes and law. Questions to ask in determining such effect include:

*Was there a contractual relationship requiring mediation?

*If so, does the contract require arbitration of unsuccessfully mediated

disputes?

*Did the parties agree contractually to be bound by the mediated agreement?

*What contract law is applicable to the agreement?

*Is there a controlling mediation statute?

*What is the particular mediator’s policy?

*Is the mediator required by law to make a report to the court or another institution or person.

agency or to the parties?

*Is the mediator prohibited by law from making a report to the court or

another agency or the parties?

The mediated agreement can take a number of forms. These range from the

least formal, an oral agreement, to the most formal, a formalized legal document. There are many which fall between these two. The form of the agreement will often depend on the nature of the case and whether or not a lawsuit is pending.

It is also possible to have what is termed a self-executing agreement that is carried out completely at the time of the agreement. An example is the exchange of goods, or the payment of a sum certain. The item or cash is exchanged during the mediation, and the matter is concluded. These situations are very rare, but most often a written agreement would not be necessary.

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In many of the community mediation models, the issue of technical enforceability of the mediated agreement is rarely raised. The theory is that individuals who take part in agreement formation have ownership in it, are psychologically committed to it, and, therefore, are likely to comply with the terms. Research supports this hypothesis. It has been demonstrated that not only are disputants satisfied with the agreement, but also they perceive the outcome as significantly fairer than a court determination. Consequently, there is a much greater likelihood that they will follow the terms. Yet some agreements, particularly those that must be performed over time, contain compliance provisions. These may include a third party who will monitor compliance. In litigation, this party is often assumed to be the court.

An agreement reached during mediation should be embodied in writing. Mediation does not take the place of independent legal advice, and the embodiment of the agreement should be drafted by, or at least reviewed by, counsel for the parties. Generally, the enforceability of such agreements will be governed by general principles of contract law.

In a court-referred mediation, the written mediation agreements which are signed by all the parties and their attorneys are returned to the court and treated as docket entries in the court records. An attorney for one of the parties will draft an agreed order accepting the agreement. In drafting the signed mediated agreement, attorneys should consider the time value of money and should set a time frame for compliance to avoid overreaching by a party.

VII. Mediator Ethics

A. The revised version of the Model Standards of Conduct for Mediators was adopted in August and September 2005 by the American Arbitration Association, the American Bar Association and the Association for Conflict Resolution (ACR). The original 1994 standards were also approved by each of these participating associations except that the ACR was at that time called the Society of Professionals in Dispute Resolution.

These standards are designed to serve as fundamental ethical guidelines for persons mediating in all practice contexts and serve three primary goals: to guide the conduct of mediators; to inform the mediating parties; and to promote public confidence in mediation as a process for resolving disputes.

The drafters of the standards use of the term “shall” indicate that the mediator must follow the practice described. The use of the term “should” indicates that the practice described in the standard is highly desirable, but not required, and is to be departed from only for very strong reasons and requires careful use of judgment and discretion. Until these standards are adopted by a court or other regulatory authority, they do not have the force of law. Nonetheless, the fact that these standards have been adopted by the respective

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Sponsoring entities should alert mediators to the fact that they standards might be viewed as establishing a standard of care for mediators. The following standards are from the Model Standards of Conduct for Mediators:

B. Nine Standards to Follow

Standard I: Self-Determination - A mediator shall conduct a mediation based on the principle of “party self-determination.” This means that the parties come to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome.

Parties may exercise their self-determination at any stage of mediation, including the mediator selection, process design, participation in or withdrawal from the mediation, and the outcome of the process.

A mediator cannot personally ensure that each party has made free and informed choices to reach particular decisions, but when appropriate, a mediator should make the parties aware of the importance of consulting other professionals to help them make informed choices.

Standard II: Impartiality - A mediator shall decline a mediation if the mediator cannot conduct it in an impartial manner. Impartiality means freedom from favoritism, bias, or prejudice. The mediator shall conduct mediation in an impartial manner and avoid conduct that gives the appearance of partiality. If at any time a mediator is unable to conduct mediation in an impartial manner, the mediator shall withdraw.

Standard III: Conflicts of Interest – (1) A mediator shall avoid a conflict of interest or the appearance of a conflict of interest during and after a mediation. A conflict of interest can arise from involvement by a mediator with the subject matter of the dispute or from any relationship between a mediator and any mediation participant, whether past or present, personal or professional, that reasonably raises a question of a mediator’s impartiality. (2) A mediator shall make a reasonable inquiry to determine whether there are any facts that a reasonable individual would consider likely to create a potential or actual conflict of interest for a mediator. (3) A mediator shall disclose, as soon as practicable, all actual and potential conflicts of interest that are reasonably known to the mediator and could reasonably be seen as raising a question about the mediator’s impartiality. After disclosure of this information, if all parties agree, the mediator may proceed with the mediation. (4) If a mediator learns any fact after accepting a mediation that raises a question with respect to that mediator’s service creating a potential or actual conflict of interest, the mediator shall disclose it as quickly as practicable. After disclosure, if all parties agree, the mediator may proceed with the mediation. (5) If a mediator’s conflict of interest might reasonably be viewed as undermining the integrity of the mediation, a mediator shall withdraw from or decline to proceed with the mediation regardless of the expressed desire or agreement of the parties to the contrary. (6) Subsequent to a mediation, a mediator shall not establish another relationship with any of the participants in any matter that would raise questions about the integrity of the

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Mediation. When a mediator develops personal or professional relationships with parties, other individuals or organizations following a mediation in which they were involved, the mediator should consider factors such as time elapsed following the mediation, the nature of the relationships established, and services offered when determining whether the relationships might create a perceived or actual conflict of interest.

Standard IV: Competence – A mediator shall mediate only when the mediator has the necessary competence to satisfy the reasonable expectations of the parties. Any person may be selected as a mediator, provided that the parties are satisfied with the mediator’s competence and qualifications. If a mediator, during the course of a mediation determines that he/she cannot conduct the mediation competently, the mediator shall discuss that determination with the parties as soon as is practicable and take appropriate steps to address the situation, including, but not limited to, withdrawing or requesting appropriate assistance. If the mediator’s ability to conduct mediation is impaired by drugs, alcohol, and medication or otherwise, the mediator shall not conduct the mediation.

Standard V: Confidentiality – A mediator shall maintain the confidentiality of all information obtained by the mediator in mediation, unless otherwise agreed to by the parties or required by applicable law. Of course, if the parties to a mediation agree that the mediator may disclose information obtained during the mediation, the mediator may do so. A mediator should not communicate to any non-participant (including the referring judge) information about how the parties acted in the mediation. A mediator may report, if required, whether parties appeared at a scheduled mediation and whether or not the parties reached a resolution. Certainly if a mediator participates in teaching, research or evaluation of the mediation process, the mediator should protect the anonymity of the parties and abide by their reasonable expectations regarding confidentiality.

A mediator who meets with any persons in private session during a mediation shall not convey directly or indirectly to any other person, any information that was obtained during that private session without the consent of the disclosing person. A mediator shall promote understanding among the parties of the extent to which the parties will maintain confidentiality of information they obtain in a mediation. Depending on the circumstance of a mediation, the parties may have varying expectations regarding confidentiality that a mediator should address. The parties may make their own rules with respect to confidentiality, or the accepted practice of an individual mediator or institution may dictate a particular set of expectations.

Standard VI: Quality of the Process – A mediator shall conduct a mediation in accordance with these Standards and in a manner that promotes diligence, timeliness, and safety, presence of the appropriate participants, party participation, procedural fairness, party competency and mutual respect among all participants. In addition, a mediator shall not undertake an additional dispute resolution role in the same matter without the consent

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of the parties. Before providing such service, a mediator shall inform the parties of the implications of the change in process and obtain their consent to the change. A mediator who undertakes such role assumes different duties and responsibilities that may be governed by other standards.

If a mediator is made aware of domestic abuse or violence among the parties, the mediator shall take appropriate steps including, if necessary, postponing, withdrawing from or terminating the mediation.

If a mediator believes that participant conduct, including that of the mediator, jeopardizes conducting a mediation consistent with these Standards, a mediator shall take appropriate steps including, if necessary, postponing, and withdrawing from or terminating the mediation.

Standard VII: Advertising and Solicitation – A mediator shall be truthful and not misleading when advertising, soliciting or otherwise communicating the mediator’s qualifications, experience, services and fees. A mediator shall not solicit in a manner that gives an appearance of partiality for or against a party or otherwise undermines the integrity of the process. A mediator shall not communicate to others, in promotional materials or through other forms of communication, the names of persons served without their permission.

Standard VIII: Fees and Other Charges – A mediator shall provide each party’s representative true and complete information about mediation fees, expenses and any other actual or potential charges that may be incurred in connection with a mediation. A mediator’s fee arrangement should be in writing unless the parties request otherwise. A mediator shall not charge fees in a manner that impairs a mediator’s impartiality. While a mediator may accept unequal fee payments from the parties, a mediator should not use fee arrangements that adversely impact the mediator’s ability to conduct a mediation in an impartial manner.

Standard IX: Advancement of Mediation Practice – A mediator should act in a manner that advances the practice of mediation. A mediator promotes this Standard by engaging in some or all of the following: (1) fostering diversity in the field of mediation; (2 striving to make mediation accessible to those who elect to use it, including providing services at a reduced rate or on a pro bono basis as appropriate; (3) participating in research when given the opportunity, including obtaining participant feedback when appropriate; (4) participating in outreach and education efforts to assist the public in developing an improved understanding of, and appreciation for, mediation; (5) assisting newer mediators through training, mentoring, and networking. Additionally, a mediator should demonstrate respect for differing points of view within the field, seek to learn from other mediators and work together with other mediators to improve the profession and better serve people in conflict.

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Mediators should honor these standards of ethics to keep the mediation process viable for use in all types of disputes and controversies and to maintain the trust of the public, clients and lawyers who utilize the process.

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