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David Fitzsimons

It's Settled, Then.

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:

  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

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

Mediation: A Correct Frame of Mind

June 27, 2012 by David Leave a Comment

Did you ever receive a timely reminder of a “good practices” point in an area seemingly unrelated to the day job? Developing studies in neuroscience using active CAT scans and EEG’s appear to provide insights in to brain activity in people under varying degrees of stress. With emerging understanding of how certain areas of the brain “map” for certain activities, scientific observation is aiding in conflict resolution.

A high point of the New Year’s holidays is the increased frequency of English Premier League soccer games on TV. Watching with my 16 year old son as his favorite team Arsenal, unable to hold a 2-1 lead [a constant worry for Arsenal fans] loses 3-2 to their London rivals Fulham, I observed with clinical detachment the failure of the Gunners’ midfield to protect the wavering Arsenal back four. James and I discussed this fact in clipped tones as the Cottagers players mobbed the winning goal scorer in the closing seconds of injury time.

I was at first surprised when James, generally a calm young man [he gets that from his Mother’s side]reacted rather negatively to a suggestion by his mother…”Now that the game is over, could you put this laundry away please?”…a reaction which, let’s say was somewhat disproportionate to the proposal.

As the thunder of unhappy size 12’s receded to the back of the house [cue SLAM of door]…I mentioned that the collapse of what looked like a comfortable win MIGHT have been all that his mind could process at that moment…”But I waited until the game was over”.

So here’s the thing…and thank you if you have stuck with my tenuous thread thus far…in the properly structured process of mediation (pre-mediation conference, mediation statements, meaningful inquiry and observation by mediator) we often enjoy the advantage of forewarning of issues and questions that are likely to fire the emotional, non-rational areas of the brain.

And those CAT scans indicate that when the emotional centers go red hot…the analytical centers go stone cold… and remain that way for quite some time AFTER the hot spot of the initial outburst has calmed down. Is science confirming what we often have done via intuition? Change the subject, redirect, reframe, acknowledge a person’s reaction by reflecting their pain at the failure of the wing midfielders to track back, exposing the centre backs to overlapping attacks and crosses…and WAIT a few minutes before asking them to pair socks.

Further discussion of the intricacies of effective defense in depth, and its application to real life is happily discussed over a Pint at the requestor’s pleasure.

Filed Under: Mediation Tagged With: mediation

Standards for Mediators: Impartiality

June 25, 2012 by David Leave a Comment

A. A mediator shall decline a mediation if the mediator cannot conduct it in an impartial manner. Impartiality means freedom from favoritism, bias or prejudice.

This one is pretty clear, I submit, on its face.  In my experience, pretty much all of the mediators I have worked with, or retained when I represent a litigant, have come to be mediators out of a desire to assist in the resolution of conflicts, and as such recognize the benefit, and indeed requirement of impartiality as defined.

B. A mediator shall conduct a mediation in an impartial manner and avoid conduct that gives the appearance of partiality.

Here those oh so difficult to define words “…avoid…the appearance of partiality…” arise.  It occurred to me early in my experience with mediation that looking for actual, or the appearance of bias in the mediator takes up a considerable amount of time of the parties and their counsel, particularly if the mediator spends any degree of time in caucus with the other side. In my experience, it is more often the perception, right or wrong, that the mediator “took sides” that either scuttles a mediation, or of the dispute/case does settle, results in an imperfect outcome…”The case settled, but the mediation was a failure”. This is getting too heavy for “Summer Cruising”, and will appear in a specific article later this fall.

1. A mediator should not act with partiality or prejudice based on any participant’s personal characteristics, background, values and beliefs, or performance at a mediation, or any other reason.

2. A mediator should neither give nor accept a gift, favor, loan or other item of value that raises a question as to the mediator’s actual or perceived impartiality.

3. A mediator may accept or give de minimis gifts or incidental items or services that are provided to facilitate a mediation or respect cultural norms so long as such practices do not raise questions as to a mediator’s actual or perceived impartiality.

I have combined these three sub-sections, because for the legal user, they are best addressed by noting that the Model Standards of Conduct for Mediators apply also to mediation processes outside the court or litigation context. If any of these standards appear foreign to you, write in with your questions, your identity will not be disclosed in my response.

C.      If at any time a mediator is unable to conduct a mediation in an impartial manner, the mediator shall withdraw.

Again, these Standards also address conflict resolution outside the court process, but it can also happen that a mediator has forced parties or just one to address hard truths, and continuation might prejudice progress made.

 

Filed Under: Mediation Tagged With: mediation

Conduct for Mediators: Self Determination

June 25, 2012 by David Leave a Comment

Mediation has been for some time an accepted process for seeking solutions to ongoing conflict. Various standards exist as useful guidelines, and I’d like, through several posts, to address a widely recognized standard,  The Model Standards of Conduct for Mediators  [September 2005] This is a Joint Publication endorsed by the American Arbitration Association [AAA]. American Bar Association [ABA], and the Association for Conflict Resolution [ACR].  AAA’s various Rules for Mediation and Arbitration in substantive areas of law are often specified in conflict resolution clauses. I will assume the reader is familiar with the ABA. The Association for Conflict Resolution is a merged organization of three previous organizations of Family Law and other dispute resolution professionals.  The next and following articles will address the salient guidance of the Standards.

The preamble to these standards sets out the intent of the adopting agencies:

Mediation is used to resolve a broad range of conflicts within a variety of settings. These Standards are designed to serve as fundamental ethical guidelines for persons mediating in all practice contexts. They 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. [emphasis added]

While the drafters also counsel that the order of the Standards, [there are 10] does not add “priority sequence”, the first Standard is titled

1.         SELF DETERMINATION:

A. A mediator shall conduct a mediation based on the principle of party self-determination. Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome. Parties may exercise self-determination at any stage of a mediation, including mediator selection, process design, participation in or withdrawal from the process, and outcomes.

1. Although party self-determination for process design is a fundamental principle of mediation practice, a mediator may need to balance such party self-determination with a mediator’s duty to conduct a quality process in accordance with these Standards.

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

B. A mediator shall not undermine party self-determination by any party for reasons such as higher settlement rates, egos, increased fees, or outside pressures from court personnel, program administrators, provider organizations, the media or others.

Filed Under: Mediation Tagged With: 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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