Mediation 101 Archives - David Fitzsimons

Back to the Basics – It isn’t all about the mediator in mediation

November 2, 2012 By David Leave a Comment

In so many aspects of our lives in the busy and stressful times it is too easy to get caught up in the moment and find ourselves lost and frustrated that a relatively simple task or procedure appears beyond our grasp. Very often returning to “Basics,” reminding ourselves of our reason for starting the process and some retraining in the fundamentals, can get us back on track.

As a mediator in a complex or even relatively simple mediation, a looming or apparent “impasse” can in fact be “all about me.” The mediator caught up in the flow and temporarily losing detachment that is fundamental to effective neutral mediation may have to step back and reassess the situation. Sometimes some “alone time” (that brief time when each party might believe the mediator is with the other when in fact he is standing in a hall trying to figure out where to go next) is for reflection upon what has been “heard” or perhaps not listened to or appreciated – what have I observed on the subconscious level – good/poor relationships between a party and his or her counsel; the reaction of one party to the comment of another – this by everyone in the room except, hopefully, the mediator. Re-framing; re-examination, approaching the issue from different angles… Adapting as if it is the mediator, not the parties, suffering in the power imbalance. Engaging in a group session in a conversation with a party is not meant so much to talk and take more time than is necessary, but to provide the parties observing the conversations between the mediator and opponent, perhaps for the first time, to listen to the positions, interests and perspective of the opposition.

On more than one occasion, when recapping the events of a long day with the parties in caucus or in joint session it is a party who will recognize a key point or obstacle causing impasse and provide the impetus to move on. Ironically, it is rare when those instances occur, that the advantages of an effective process provided by a well-schooled and committed mediator are recognized.

Mediation Worxx – Model Standards of Conduct for Mediators

November 2, 2012 By David Leave a Comment

As the Summer months come to a [shockingly] rapid conclusion, I find we are still not so far along in our survey of the Model Standards of Conduct for Mediators [September 2005] and the practice and preparation guides that are conveyed in reviewing and contemplating the standards. This month we will address some of the views that arise from the Standards on Competence, with my comments italicized in the text…as we move into fall, these Standards will continue to inform or frame the discussion, but I’ll try to [appear] more thoughtful in substance. As always, your all too rare questions and comments are welcome and requested.

STANDARD IV. COMPETENCE

A. A mediator shall mediate only when the mediator has the necessary competence to satisfy the reasonable expectations of the parties.

1. Any person may be selected as a mediator provided that the parties are satisfied with the mediator’s competence and qualifications. Training, experience in mediation, skills, cultural understandings and other qualities are often necessary for mediator competence. A person who offers to serve as a mediator creates the expectation that the person is competent to mediate effectively.

When it comes time to select a Mediator, there is a pretty broad spectrum of qualities that one may wish to consider. For me, I want to know what actual specific training the prospective mediator has taken. But then, I’ve taken a LOT of training myself, and I view the type of and perspective from training to be a vital factor in mediator selection. Then again, all the training in the world is not going to help if, for whatever reason I lack the “cultural understandings and other qualities” necessary for the particular dispute.

Lawyers in particular place great significance in their perception of the substantive expertise of a particular mediator candidate during the selection process. Many “purists” practicing mediation decry this emphasis, claiming that opinions on substance often get in the way of exploring potentially vital understanding across the table that might lead to more comprehensive disputes resolution. Contrast if you will…”The case got settled, and the parties vowed never to speak with each other again”…with…”The case settled, and the parties are still doing business.”

Personally I’ve been a proponent of both extremes from time to time, but at this moment I have to say “it depends”. Not every dispute coming to mediation is a “Group Hug Just Waiting to Happen”. But then, not every seemingly cut and dry case about money, truly is “just about the money”.

My point is, that you do not always know going in, as the mediator OR the lawyer for a party, what truly is driving the respective clients’ interests at that moment in time. What started a conflict, over time, might well be different from what drives one or more parties towards resolution [the crippling costs of litigation is perhaps too obvious, but often a factor]. I’ll continue this frame, and hopefully draw in some of the pre-mediation processes discussed in prior columns.

Filed Under: Ethics, Mediation, Mediation 101 Tagged With: mediators, model standards of conduct

Mediation Worxx – Model Standards and Conflicts of Interest in Mediation

October 2, 2012 By David Leave a Comment

We continue my self-styled cruise through the Summer months by addressing a widely recognized standard, the Model Standards of Conduct for Mediators [September 2005] and the practice and preparation guides that are conveyed in reviewing and contemplating the standards.

STANDARD III. CONFLICTS OF INTEREST [Erroneously billed last month as “Confidentiality” I blame ‘text completion’]

A. 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.

B. 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. A mediator’s actions necessary to accomplish a reasonable inquiry into potential conflicts of interest may vary based on practice context.

C. 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, if all parties agree, the mediator may proceed with the mediation.

D. 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.

E. 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.

F. 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 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.

Here we have clearly subjective standards as I have highlighted above, and you might well wonder why such seemingly loose criteria apply. I suggest that this comes back to a key element of mediation…”the use of a neutral to help parties by facilitating discussion leading to negotiated settlement”. I submit that such an amenable conflicts standard relies upon the supposition that the mediator is NOT there to “decide” the case, but to facilitate negotiation. One of the symptoms of the current limited use and understanding of mediation in our geographic area, in my humble opinion, is the mistaken assumption that mediators can only, and are expected to voice opinions on the merits of each party’s side. More on this next soon.

Filed Under: Ethics, Mediation, Mediation 101 Tagged With: conflicts of interest, ethics, mediation

Mediation 101: What is a Pre-Mediation Statement?

July 2, 2012 By David Leave a Comment

Q: I have a mediation coming up; and the Mediator’s retention letter states that she requires “Pre-Mediation Statements” from the parties…what is that, and how do I comply? This is my first rodeo.

A: Many mediators follow a practice of requiring a pre-mediation conference, most often by telephone. The mediator’s preference or the parties’ agreed approach to a pre-mediation statement [“statement”] should be addressed at that conference.

In practice, preferences vary. Some mediators request a non-confidential statement that is to be shared with the other side[s], often with the option of providing a confidential addendum to the mediator only. Others prefer a strictly confidential submission only to the mediator. Non-confidential statements at times can be so focused on “briefing” the merits of one parties case, that the opportunity to explore one’s own, and the other sides’ options are missed. Conversely, if a party makes positive inroads towards a conciliatory approach in a strictly confidential statement, “unlocking” that confidence can be a challenge during the mediation.

The content of the statement can also vary. But a list of possibilities includes the following: 1. A brief summary of the dispute [references to pleadings are often encouraged in lieu of exposition]; 2. Confirmation of attendees at mediation; 3. Summary of settlement negotiations to date [if any]; 4. Expectations/Goals of party from mediation process; 5. Disclosure to mediator of particular circumstances, or issues that may shed light upon current posture of one or more parties; 6. Counsel’s observations of party behavior or priorities that might assist mediator.

Many mediators have a preference for particular content that has proven useful in the past. This writer often asks for a party in a confidential statement to assess the best and worst parts [upside/downside] of both their own and the opponent’s case; and hopefully this is done in conference with the attorney’s own client. At times, when substantive legal issues warrant, a request for limited citation to one or two key or seminal cases is requested. Also, specific inquiry into prior relationships between the disputing parties, and whether there is any preference to continuing the relationship can be useful.

These optional inquiries may not always generate actual content, but it has been observed that requiring counsel and their clients to at least think about such issues, sets a positive tone for when the parties first come together.

Filed Under: Mediation, Mediation 101 Tagged With: mediation, pre-mediation

Mediation 101: What should I expect?

July 2, 2012 By David Leave a Comment

Q: I have a case which is going to Mediation; do you have any suggestions about what I should or can expect from the Mediator in the way of preparation?

A: One of mediation’s strongest attributes is that the process is flexible enough to accommodate any needs and expectations of the parties. Often an experienced mediator will recognize the need to take the time to educate all participants in the process and expectations going in.

While approaches of individual mediators can vary considerably based on substantive issues as well as personal preference; almost all agree today that a thoughtful “Pre-Mediation Process” can not only streamline the actual mediation session, but also greatly enhance the opportunity for a successful outcome.

Pre-mediation can be as simple as a telephone conference call with the lawyers and/or parties to the mediation, or can include reaching an agreement upon submissions of written materials prior to the actual mediation meeting. Developing consensus amongst the parties, with the mediator’s involvement on even rudimentary issues, such as dates and locations, submissions to the mediator, can set the stage for subtle shifts in party perspective that prove invaluable as the mediation effort goes forward.

Such thoughtful groundwork, if conducted well can in effect guide the parties towards more positive ways to express their views on the conflict, and establish opportunities to view the dispute from the “…other guys’ perspective.”

Filed Under: Mediation, Mediation 101 Tagged With: mediation, mediator

Mediation 101: Does the action have to be filed?

June 25, 2012 By David Leave a Comment

Q: Is it possible to bring up Mediation before an actual suit or action is filed?

A: Absolutely. In fact, in many commercial contract settings today, “Good Faith Submission to Mediation” is a prerequisite to filing suit or requesting appointment of Arbitrators. In most instances submission to ADR, including mediation or arbitration, is a result of agreement between the parties, and they are not limited to pre-dispute contractual ADR. Like-minded opposing counsel can always recommend to their warring clients that a mutually beneficial low key and PRIVATE resolution of their dispute is in their best interest. Particularly well-suited to mediation, in this writer’s view, are family –related disputes; estates, or estates planning, elder care, family business succession, all such disputes, when fraught with legally irrelevant, yet vital core interests can potentially benefit from effective application of Mediation Process.

Filed Under: Mediation, Mediation 101 Tagged With: ADR, mediation

Mediation 101: When to bring up mediation

June 25, 2012 By David Leave a Comment

Q: When is the best time to bring up mediation as an option, with my client, or with the other side?

A: The Rules of Professional Conduct under the heading Counselor include Rule 2.1 Advisor “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice….” At comment 5 to that Rule, we find the explanation “…when a matter is likely to involve litigation, it may be necessary under Rule 1.4 [Communication] to inform the client of forms of dispute resolution that might constitute reasonable alternatives to litigation.”

So for many clients with a new dispute, the intake interview might well be the first time. As for the opposition, well we all have our views on how the “first overture” is sometimes viewed, but more frequently of late, sophisticated lawyers wielding a full array of options for their client, are perfectly comfortable proposing mediation without telegraphing “weakness”.

In many instances, parties participating in mediation, either intentionally, or because of assignment by a court, make very positive progress towards ordering and streamlining the manner of proceeding with a dispute, short of actual settlement. Also; the release of tension often inherent in a well-guided mediation process will result in global resolution in the near future, once some time and opportunity for mature deliberation free of passion has occurred.

Filed Under: Mediation, Mediation 101 Tagged With: ADR, mediation

Mediation 101: Confidentiality

June 18, 2012 By David Leave a Comment

Q: I represent a party proceeding to Mediation, and received from the Administrator an Agreement for Mediation that contains the following language. Why is this focus on confidentiality being emphasized with such particularity?

There are two areas of focus in reviewing confidentiality in Mediation; Process, and Support of Process. The successful process of mediation requires that the parties are assured of a safe, neutral and confidential forum to air their differences, perspectives and interests, in the attempt to explore common ground. According to many authorities the Mediator must work to establish a relationship which encourages open dialogue between the participants. Trust that any disclosure made to the Mediator will only be shared with other parties with permission, is fundamental in many mediations. The following language, excerpted from the Agreement to Mediate essentially tracks Pennsylvania Statute 42 Pa.C.S.A. § 5949 Confidential mediation communications and documents and local federal Rules USDC Middle District of Pa. LR 16.8.6 The Mediation Session and Confidentiality of Mediation Communications.

All discussions, representations, and statements made during mediation will be privileged as settlement negotiations. The parties agree that they will not attempt to discover or use as evidence in any judicial, administrative or arbitration action or proceeding anything related to the mediation, including any communications or the thoughts, impressions or notes of the mediator.

No document produced in mediation which is not otherwise discoverable will be admissible by any of the parties in any action or proceeding, including, but not limited to, a judicial, administrative or arbitration action or proceeding, except as provided under law.

The parties will not subpoena the mediator, or any records or documents of the mediator in any legal proceedings of any kind. If so called or subpoenaed, the mediator may refuse to testify or produce the requested documents. Should any party attempt to compel such testimony or production, such party shall be liable for, and shall indemnify the mediator against any liabilities, costs or expenses, including reasonable attorneys’ fees, which the mediator may incur in resisting such compulsion.

The mediator will not discuss the mediation process or disclose any communications made during the mediation, except as authorized by the parties, or as required by law or other applicable professional codes.

With this statutory and Rule protection, it is therefore anticipated that the parties can proceed with confidence to explore the options provided through Mediation. As with all hard and fast rules, however, you should be aware that from time to time there is litigation involving the attempt to compel disclosure or testimony by mediators. If you anticipate such a contentious situation, it would be advisable to review the current status of case law in your jurisdiction prior to proceeding to the mediation. If you need assistance in defining the issues, feel free to contact the CCBA ADR Committee through either Becky Morgenthal, or David Fitzsimons, Committee Chair.

Filed Under: Mediation, Mediation 101 Tagged With: ADR, confidentiality, mediation