Mediation

Question 1

Core Characteristics of Mediation (5)

Answer 1

• Third party called “mediator” not affiliated
  with any of the parties
• Assists parties’ communication and
  negotiation
• During a confidential process
• To reach a voluntary
• Agreement

Question 2

What can a mediator and a mediation offer? (7)

Answer 2

(1) People may be being unrealistic about solutions
(2) People may need someone to help them calm down and speak more rationally with each other
(3) Sometimes lawyers negotiating isn’t enough because the lawyers are too focused on the law and the client may not trust the lawyers outcome
(4) Sometimes clients need to ask for or give an apology
(5) It is different from a judicial settlement conference because a mediator doesn’t have the power to make any binding decision
(6) May choose over arbitration because the parties have more power over the final decision
(7) Mediation instead of neutral evaluation because ENE is involved in evaluation and the third party does not help the parties come to a conclusion, just provides their opinion

Question 3

Can be called assisted negotiation because (4)

Answer 3

• Value of questions, listening
• Assumptions
• Underlying interests (sometimes the parties are more likely to be more transparent)
• Mediators can help clients be more realistic about their BATNA

Question 4

facilitative/elicitive mediator (3)

Answer 4

Asking questions; Figuring out what the most important interests of the parties are; Makes the parties center stage

Question 5

Evaluative/directive (5)

Answer 5

The mediator proposes the settlement

Can assess the strengths and weaknesses of each side

Helping understand their BATNA and the costs and benefits of litigation

Advising them that they should take seriously the proposal of the other side

The mediator is taking center stage and being more directive (trying to direct them to a specific solution)

Question 6

Narrow Issue identification

Answer 6

Would focus on the legal issue

Question 7

Broad issue identification

Answer 7

Would focus on the legal issue and maybe psychological issues, social and political issues

Question 8

Evaluative-narrow mediator p. 7

Answer 8

Strategy is to help the parties understand the strengths and weaknesses of their positions and the likely outcome at trial.

studies relevant documents

Directly assesses the strengths and weaknesses of each side’s case (usually in private caucuses) and perhaps tries to persuade the parties to accept the mediator’s analysis.

urges the parties to settle or agree on a settlement range

• uses his own assessments, predictions, and proposals, and applies pressure

Question 9

Facilitative-narrow mediator p. 7

Answer 9

mediator plans to help the participants become
“realistic” about their litigation situations.

unlikely to study relevant documents

asks questions—generally in private caucuses—to help the participants understand both sides’ legal
positions and the consequences of non-settlement

Also in private caucuses, he helps each side assess
proposals in light of the alternatives

Question 10

Evaluative broad mediator p.8

Answer 10

Interests > positions
Emphasizes her own understanding of the circumstances
Studies relevant documents

Question 11

Facilitative broad

Answer 11

Interests > positions
Helps parties define, understand, and resolve the problems
Helps parties generate and assess proposals designed to accommodate interests
Less likely to request or study litigation documents, technical reports, or mediation briefs

Question 12

Different models for the primary goal of settlement of dispute

Answer 12

(1) Classic – Facilitative (or Elicitive)
(2) Classic – Evaluative (or Directive)
(3) Analytic
(4) Understanding-focused (understanding-based)

Question 13

Understanding-based model

Answer 13

Parties are not questioned separately; Primary goal is that the parties understand each other; Parties are not allowed to go into caucus

Question 14

Different models for the primary goal of transforming the relationship and conflict interaction

Answer 14

(1)Transformative (Make sure each party has an opportunity to speak and be heard – particularly used in the employment process)
(2)Therapeutic (focuses on the people)

Question 15

Transformative model

Answer 15

also where parties are always together; focus is not on settlement, the goal is to empower the parties and to help them see each other as fellow human beings (settlement is a byproduct of a deeper goal of changing the parties perspectives on each other); keeping the parties in the same room helps the parties listen to each other

Question 16

structure of “classic” mediation

Answer 16

(1) pre-mediation preparation
(2) orientation – agreeing to mediate
(3) understanding the problem
(4) generating and assessing options
(5) reaching agreement
(6) closing the mediation
(7) implementing the agreement

Question 17

Pre-mediation preparation

Answer 17

• selecting mediator
• preparing and planning with client
• making pre-mediation submissions
• pre-mediation conferences with mediator

Question 18

Understanding the problem (and demonstrating that understanding)

Answer 18

• facts
• law / rights
• interests

Question 19

Classic mediation and key facilitative/elicitive interventions

Answer 19

• questioning (for concerns, for underlying interests)
• listening (for concerns, for underlying interests)

Question 20

caucus

Answer 20

a private meeting held by the mediator with each individual party; Mediator in caucus can ask more sensitive information and the parties will delve more sensitive info

Question 21

how the mediator demonstrates that they understand

Answer 21

Active listening
Reflective listening
Loop of understanding (this is the best): you reflect back what you think they have said, and then you ask, “so did I get that right?”

Question 22

Mediation and confidentiality:

Answer 22

Communication is confidential, is not subject to disclosure, and may not be used as evidence against the participant in any judicial or administrative proceeding

binding upon the mediator and parties

can be based on statute, court rule – or private contract between the parties

Additionally, once the mediators put the parties into caucus, the mediator will ask “is there anything you said that you want to keep confidential”, and depending on the answer, some things must need to be confidential and some things may not need to be confidential

Question 23

The mediation privilege

Answer 23

mediation communications (even in some states communications that occur prior to the formal mediation but are necessary to set up the mediation) cannot be used against the participants in any judicial or administrative proceeding

generally requires a basis in statute or court rule to hear relevant evidence protected by mediation confidentiality

This mediation privilege applies to everything except for a final settlement agreement

Question 24

Recall the Golden Years simulation. Imagine that you are the mediator, and you are trying to be as facilitative (or elicitive) as possible, based on the continuum of mediator practices from facilitative (or elicitive) to evaluative (or directive). Which of the following would be the most facilitative (or elicitive) intervention?

Answer 24

In caucus, you ask Sally Soprano what she would most like to accomplish through the mediation.

Question 25

According to Riskin, a mediator with a “broad” agenda:

Answer 25

Encourages the parties to consider a wide range of issues and options to settle a dispute.

Question 26

Which of the following is never a characteristic of mediation?

Answer 26

A binding decision by the neutral.

Question 27

In mediation, a caucus is:

Answer 27

A meeting between the mediator and just one side in the mediation.

Question 28

Which of the following statements is true?

Answer 28

Lawyers should prepare their clients for mediation.

Question 29

Communications that occur in mediation:

Answer 29

Are confidential, but in general they will be inadmissible at trial only if a statute or rule provides for a mediation privilege.

Question 30

subject matter expertise in mediation

Answer 30

The need for subject matter expertise in the mediator increases to the extent that the parties seek evaluations – assessments, predictions, or proposals – from the mediator

Question 31

Regulation / licensing of mediators: General

Answer 31

Like for arbitration, there are no specific requirements

Question 32

Regulation / licensing of mediators: Court-connected mediation

Answer 32

You would need to meet requirements for state specific courts Usually, take a credential mediation skills training (around 40 hours)

Question 33

Regulation / licensing of mediators: Private organisations – AAA, JAMS

Answer 33

They will conduct their own training, or require training They will look at the persons substantive experience

Question 34

Court order mediation

Answer 34

Courts regularly refer parties to mediation (sometimes it is a suggestion and sometimes its and order) Courts want to encourage parties to settle, and mediation usually has a potential to settle the case (50%)

Question 35

Judicial mediation (aka. judicial settlement conference)

Answer 35

If the presiding judge is serving as a mediator, this is not the same thing as having a mediator because you are not going to disclose as much information as you would in a traditional mediation because you don’t want to disclose anything not favorable to you - Also you don’t want to say anything to offend the judge - One of the lawyers can bring a judgment as a matter of law

Question 36

Mediation role within summary jury trial

Answer 36

Phase one: Lawyers are presenting best case arguments to a jury - The jury is going to come back with an advisory judgment Phase two: the parties will negotiate or mediate based on the summary jury judgment - You may end up with a third party playing a mediator type role (usually called a neutral)

Question 37

Special master as mediator

Answer 37

People may not always be called mediator but are playing a mediator type role

Question 38

When lawyers serve as mediators:

Answer 38

The Model Rules of Professional Conduct provide that a lawyer-mediator must explain to an unrepresented party the difference between the role of a lawyer and the role of a mediator, when that party does not understand the role the lawyer is playing in the mediation.

Question 39

Which of the following is most accurate?

Answer 39

Courts are more likely to enforce mediation clauses if mediation is described as a “condition precedent” to initiating an adjudicative process such as arbitration or litigation, the clause specifies a time limit within which mediation must occur, and the clause specifies the consequences of failing to undertake mediation.

Question 40

Stages of mediation

Answer 40

1. Agreeing to mediate 2. Understanding the problem 3. Generating options 4. Reaching agreement 5. Implementing the agreement