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David Fitzsimons

It's Settled, Then.

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:

  1. The client who needs what mediation provides but cannot admit it.
  2. 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.)
  3. 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.
  4. 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

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

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

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David Fitzsimons - Principal
ADRFitz LLC
Alternative Dispute Resolution
Mediation. Arbitration. Peacemaking.
"Its Settled, Then"
Telephone: (717) 579-3503
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