Successful Mediation Standards

David A. Fitzsimons
Martson Law Offices A Professional Corporation Ten East High Street Carlisle, Pennsylvania 17013 Telephone: (717) 243-3341 Facsimile: (717) 243-1850 dfitzsimons@martsonlaw.com

Julia Rabich
Law Clerk, Martson Law Offices 3L, The Dickinson School of Law yxr124@dsl.psu.edu

ABA MODEL STANDARDS OF CONDUCT FOR MEDIATORS

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.

Mediation is a process in which an impartial third party facilitates communication and negotiation and promotes voluntary decision making by the parties to the dispute.

Mediation serves various purposes, including providing the opportunity for parties to define and clarify issues, understand different perspectives, identify interests, explore and assess possible solutions, and reach mutually satisfactory agreements, when desired.

ABA Section of Dispute Resolution Task Force on Improving Mediation Quality

Background
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Members: 17
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Diverse geographic areas
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Lawyers and non-lawyers
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Involved in different types of mediation

ABA Section of Dispute Resolution Task Force on Improving Mediation Quality Final Report
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Focused only on private practice civil cases

(since mediation norms vary widely by type of mediation)
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Commercial, tort, employment, and construction cases
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NOT family law or community disputes
ABA Section of Dispute Resolution Task Force on Improving Mediation Quality, Task Force on Improving Mediation Quality Final Report (2008),
available at
http://www.americanbar.org/content/dam/aba/migrated/ dispute/documents/FinalTaskForceMediation.authcheckdam.pdf.

ABA Section of Dispute Resolution Task Force on Improving Mediation Quality Final Report

General Findings
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Not a one-size fits all best practice regime
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Recommends mediators and participants tailor procedures to fit each case
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Participants appreciate:
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Skill, knowledge, but ALSO
•Good intuition about parties’ emotional needs

ABA Section of Dispute Resolution Task Force on Improving Mediation Quality Final Report

Four Focus Points
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Preparation for mediation
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Case-by-case customization
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Careful consideration about providing
“analytical” assistance

•Mediators’ persistence and patience

Preparation for Mediation

Mediation begins during preparation phase
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Need for mediators to “be there” from the beginning

Preparation for Mediation

Suggestions
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Essential for mediators to review all documents
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Mediators and lawyers should discuss prior to session:
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Procedure
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Substance
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Real issues and potential stumbling blocks
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Confirm participation
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Settlement authority

Preparation for Mediation

Preparation enables:
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Parties to understand process, issues, and interests
•Mediators to understand parties’ goals

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All to settle case and minimize time, cost and risks

Case-by-Case Customization

Participants desire tailored process
•Parties’ preferences differ

•Coordinating scheduling of mediation to suit parties’ needs

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Determine the need for opening statements

Careful Consideration About Providing
“Analytical” Assistance

Potential Assistance
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Ask pointed questions
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Suggest options
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Provide analysis of case