Mediation Archives - David Fitzsimons

The Struggle or Challenge for ADR in Pennsylvania

November 2, 2012 By David Leave a Comment

Some basic principles essential to the development and success of mediation will be ignore, denied or overrun if the ADR community does not consistently remind participants and potential participants of its values. The loudest voices critical of the values of the process are often those who see themselves as having the most to lose to an “alternative” model. In fact, they and their clients stand to gain the most if we can demonstrate how embracing the fundamentals of effective process can lead to successful outcomes.

1. Party Self-Determination. The mediation belongs to the parties, but party self-determination should not equal self destruction.

2. Flexibility is Vital. No two mediations are the same, so why do some mediators do the exact same thing every time? (Is it because the mediation is theirs not the parties?)

3. Mediation Must be Open-Ended. If no two mediations are alike, how do you know going in what to do and how can you get it done in a couple of hours?

If you have two hours scheduled for a mediation, don’t bother.
If the mediator and/or the parties cannot commit to a thorough pre-mediation process you may not want to bother.

4. Matching your Mediator is Key. In your first discussion with your potential mediator ask the mediator what he or she does as part of the pre-mediation process. If he or she says that they do not bother with that, thank them for their time and go back to the list of qualified mediators and start over.

5. That One Take Away. What is the pre-mediation process? The most abused, overlooked, ignored and a vital element of effective mediation. Any mediator who says that he/she doesn’t use, need or appreciate it… is a PRETENDER or at best somebody who calls himself/herself a mediator and has never bothered to take or pay attention to the class.

Filed Under: Mediation

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

You Might be a Mediator…

October 10, 2012 By David Leave a Comment

“So why even have the mediation? If I can get all that information, I can probably tell the parties what they need to hear in the first hour.”

If you agree with that, then you might NOT be a mediator.

Ask either of these questions:

Who prepares the pre-mediation statement?
To whom does the mediation belong?

Ask yourself:

Why are interrogatories so often less effective in discovery than depositions?
Who prepares the Answers to interrogatories?
Does the mediation always “track” the pre-mediation statements?
Audience?

How might mediation make a difference?

Filed Under: Mediation Tagged With: mediation

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

How is a pre-mediation statement useful in mediation?

August 2, 2012 By David Leave a Comment

The pre-mediation statement rarely is a script for conduct for an effective mediation. And why is that? It gives the mediator all sorts of insight into the parties, their representatives, their level of sophistication (arrogance), their expectations from mediation, their attitude toward the other side and their investment, among other things, in the level and length of the conflict in which they have already been engaged. Often an effective pre-mediation process provides the mediator with a pretty good idea of areas of exploration (exploitation?) in mediation, but it is very important that the mediator stop himself or herself from leaping to conclusions or judgments.

Mediators are not judgmental. Lawyers are universally judgmental and… (discuss.)

The pre-mediation statement, if it focuses on the basics, provides a great tool for the willing advocate who needs help with their guidance of different clients. It is for:

The client who needs what mediation provides but cannot admit it.
The difficult or institutional client not culturally or structurally set up for cost-effective dispute resolution (dysfunctional corporate entities, most government entities, family dispute driven entities, for example.)
The preparation of a pre-mediation statement provides the first (and perhaps last) real opportunity to focus the client, and the advocate, on the pluses and minuses of their case and…this is vital…with control over the outcome.
Pre-Mediation provides the mediator his or her best opportunity to help the parties frame their dispute resolution process…and missing this chance to educate the value of the process cannot be risked.

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

Successful Mediation Standards

July 2, 2012 By David Leave a Comment

Powerpoint presentation for my discussion on Successful Mediation Standards

Successful Mediation

Filed Under: Mediation Tagged With: mediation, standards

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

How does an attorney avoid abuse of his services?

July 1, 2012 By David Leave a Comment

Q: I am an attorney and sometimes serve as a mediator for disputes which are not yet in litigation, or are pro se representations referred by Magistrate Justices. Often it seems as if the parties are unfairly using my legal services to map out an agreement. How do I avoid this?

A: That is a great question, and it brings up a number of issues. First let me say that the role of mediator does carry potential pitfalls for the lawyer/neutral. Often in matters that are in litigation, lawyers representing parties will look for an attorney/mediator with subject matter expertise. In the right circumstances, this is vital, in others, it can be optional, or even an impediment. But that is another article. Non-represented parties knowing you are a lawyer can be problematic because you do NOT represent either…and except in very rare and exceptional circumstances you cannot represent both. Again, that is another article.

The Pennsylvania Rules of Professional Conduct provide a useful guideline for addressing this issue, and I’m sure you can find bases for explaining the importance of observing the protections of the R.P.C. and how the points I have highlighted from the comment below can aid in your decision, and explanation to unrepresented parties.

Rule 2.4 Lawyer Serving as Third-Party Neutral

(b) A lawyer serving as a third-party neutral shall inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or reasonably should know that a party does not understand the lawyer’s role in the matter, the lawyer shall explain the difference between the lawyer’s role as a third-party neutral and a lawyer’s role as one who represents a client.

Comment:

[3] Unlike nonlawyers who serve as third-party neutrals, lawyers serving in this role may experience unique problems as a result of differences between the role of a third-party neutral and a lawyer’s service as a client representative. The potential for confusion is significant when the parties are unrepresented in the process. Thus, paragraph (b) requires a lawyer-neutral to inform unrepresented parties that the lawyer is not representing them. For some parties, particularly parties who frequently use dispute resolution processes, this information will be sufficient. For others, particularly those who are using the process for the first time, more information will be required. Where appropriate, the lawyer should inform unrepresented parties of the important differences between the lawyer’s role as third-party neutral and a lawyer’s role as a client representative, including the inapplicability of the attorney-client evidentiary privilege. The extent of disclosure required under this paragraph will depend on the particular parties involved and the subject matter of the proceeding, as well as the particular features of the dispute-resolution process selected.

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

The Struggle or Challenge for ADR in Pennsylvania

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

Mediation Worxx – Model Standards of Conduct for Mediators

You Might be a Mediator…

Mediation Worxx – Model Standards and Conflicts of Interest in Mediation

How is a pre-mediation statement useful in mediation?

Successful Mediation Standards

Mediation 101: What is a Pre-Mediation Statement?

Mediation 101: What should I expect?

How does an attorney avoid abuse of his services?

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