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Potential, but not necessarily all, required elements of the pre-mediation process. Live conference Conference call with or without parties Circulation of agreement to mediate Request for pre-mediation statements Statements are vital, preferably confidential, i.e. not shared between the parties, and if structured properly in their basics and customized for the nature of the dispute that […]

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 […]

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 […]

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 so 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 […]

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 […]

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 […]

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 […]

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 […]

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 […]

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 […]

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. […]

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 […]

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, […]

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 […]

“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 […]