What To Expect From Your Mediator
I. Sample Mediator's Opening Statement Outline
A. Introduction of Participants
Use of formal address? Mr., Mrs., Ms., Dr., Rev., Col., Counselor?
B. Purpose and Advantages of Mediation
-More Efficient/Quicker than Full Litigation: Greater Party Satisfaction
-Parties Retain Control Over Decisions address your concerns and answer your questions.
-High Resolution Rate
-Parties Retain Right to Use Other Processes if Conflict Not Resolved
-Can Help Repair Relationships
-Generally CheaperThan Litigation
-Confidentiality of Process and Exceptions (lack of safety, person can't make decision present)
C. Mediator's Role
-Neutral and impartial; will not coerce Parties nor control the outcome
-Assist in negotiations
-Will NOT provide legal, financial or other advice
D. Parties' and Attorneys' Roles
-Parties-Negotiation in good faith and,if appropriate, make decision regarding settlement
-Attorneys - Provide legal advice and counsel
E. Describe the Mediation Process
-There will be an opening presentation by each party and/or their representatives
-Opportunity for joint discussion
-Private meeting with mediator (these will be confidential unless released)
-Separation of individual issues
-Resolution of individual issues (if appropriate)
-Final resolution of all issues
Mediators at Morris|Hardwick|Schneider have been trained to handle your disputes according to an organized format. In other words, mediation is not a "free-for-all" or merely another opportunity to continue the fight in a different conference room. Here is a glimpse of the types of procedures and considerations a good mediator is likely to implement during the mediation process:
II. Handling the Mediation
A. Guidelines for the Process
-Listen and speak respectfully
-Remember whom you must persuade (not the mediator) and who will be making decisions
-Focus on interests and needs
-Remember to reach a solution each party must have some of its interest met
-Either the mediator or either party may terminate the mediation at any time
-If court-ordered participation is mandated, settlement is not
B. Concluding the Process
-If an agreement is reached, the mediator can assist them in writing the agreement
-The agreement, once signed, will have a significant effect upon the rights of the parties and upon the status of the case
-Check Authority: if you reach a satisfactory agreement, do you have all of the people present necessary to enter into a binding, written agreement?
-If parties are unrepresented,advise them they have the right to consult counsel and have any agreement reviewed by an attorney prior to signing
C. General Procedures
1.Be an active (listening) participant
2.See how an early proposal will impact later discussion
4.Attempt to move people off problem to solution
5.Focus on the interests and needs not positionst
6.Generate a variety of options (brainstorming)
7.Use external standards for evaluation
D. Reality Testing & Reviewing Alternatives to Reaching Agreement
1.If there are parts to the negotiation, start with what will give the easiest "yes"
2.Use BATNA - Best Alternative Negotiated Agreement
3.Look at WATNA - Worst Alternative To a Negotiated Agreement
4.Finally, look at PATNA - Probable Alternative to Negotiated Agreement
E. Common Areas of Reality Testing
1.Each side's strengths and weaknesses
2.Value of the case (damages, money)
3.Likelihood of success (if the matter goes to trial, arbitration, etc.)
5.Financial, Time issues involved if the matter is not resolved in mediation
6.Impact on others (e.g. family, employees, insurance rates, etc.,if not resolved)
7.Likelihood of collection if a jury verdict
8.Present value of money
F. Tools for Smoothing the Mediation Process
1.Attempt to smooth emotional elements
2.Lessen the chances of missed communication
3.Help each side hear the other
4.Ask opening questions which show you have an interest in them
5.Establish rapport with all participants
6.Stay On The Outline For The Case
7.Do NOT become a therapist!!
8.Hear what each person says and reflect it
9.Understand what has been said
10.Take all comments seriously
11.Understand the impact of the dispute on the parties (may want to caucus to make sure each party knows what is going on)
12.Be aware of body language
13.Summarize what each party has said
15.Make empathic statements
17.Make certain to get the names and relationships right
18.Make certain to get the issues right
19.Ask OPEN ENDED QUESTIONS
20.Ask REALITY RELATED QUESTIONS, to pry one off an unrealistic position (should be done in caucus)
21.Reframe negative and inflammatory question
22.Remember each loaded statement has a foundation of interest which prompted it
b.take out the unproductive, such as threats, positions, etc.
c.look for interests
d.restate in neutral language
G. When It Gets Out of Hand
-Get ready to help defuse attack by seeing if there's a way to reframe in a non-threatening way.
-Remind all parties we are dealing in respectful manners and each client will have an opportunity to state a position/interest.
-Venting can be helpful. May arrive in an open session, but is probably better done in caucus.
-Be certain the mediation is in a SAFE environment. May want to reflect on the below:
1.Provide separate rooms for the parties.
2.Consider whether separate office locations are necessary, and, if so, the mediator shuttle between them, keeping the parties totally isolated from each other.
3.Consider video conferencing.
4.When each party arrives, show each one to a separate, private area to wait while you are awaiting the arrival of others.
5.Make certain the room being used does not contain anything which might be used as a weapon, such as heavy decorative items, etc.
6.Be alert to either party's bringing a weapon, and have strategy for dealing with the possibility.
7.Be alert for verbal and non-verbal threats and take immediate action.
8.Do not allow the parties to use intimidation during the mediation; encourage a respectful atmosphere.
9.Have the phone numbers of the police and any safety officers at the ready.
10.Mediate at locations and times that you know other people will be present.
11.If particularly concerned, mediate in a courthouse which has metal detectors.
III. Concluding the Mediation
A. Ending a Mediation Session Safely
1.Arrange for the parties to leave at separate times.
2.If a party is fearful for his or her safety, arrange for a police or security escort.
3.Make appropriate referrals to(e.g)lawyers, police, security personnel, shelters, etc
B. Dealing with Impasse
Not all disputes will be able to be resolved in mediation despite the skill of the mediator. Negotiators may reach an impasse in mediation for many reasons, including:
1.Lack of information
2.Lack of settlement authority
3.Failure of an attorney or representative to prepare for mediation
4.Unresolved hostility between the parties or attorneys
6.Inappropriate timing (e.g. holidays, emotionally distracted)
7.Parties did not come for the purpose of resolving the matter, but only because the court ordered them to come
An impasse can be avoided by discouraging either of the parties from making proposals for settlement early in the process before sufficient information is exchanged and the parties have an extensive knowledge of what is involved.
C. How to Get Beyond the Impasse
If an impasse is reached, consider the following:
1.Do some additional reality testing
2.Remind the parties that if settlement is to be reached, some of the interests of each party must be met
3.Ask the parties to brainstorm
4.Meet with the attorneys alone and ask them what they think is going on
5.If lack of sufficient authority or knowledge is available, ask the people to contact the appropriate person, and the mediator might consider speaking to that person.
6.Take a break and give everyone a break
7.Determine if it is appropriate to meet at a later time - get more information, expert, etc.
8.Make a mediator's proposal
9.Suggest a negotiating range (WATNA, BATNA, PATNA)
10.Suggest split the difference
11.Help the parties save face by providing them with justification for making movement
12.Suggest they use another ADR process, such as arbitration (beware of being asked to be the arbitrator since you have confidential information)
13.End the arbitration, but stay in touch with people