Mediation Flashcards
Core Characteristics of Mediation (5)
- 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
What can a mediator and a mediation offer? (7)
(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
Can be called assisted negotiation because (4)
- 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
facilitative/elicitive mediator (3)
Asking questions; Figuring out what the most important interests of the parties are; Makes the parties center stage
Evaluative/directive (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)
Narrow Issue identification
Would focus on the legal issue
Broad issue identification
Would focus on the legal issue and maybe psychological issues, social and political issues
Evaluative-narrow mediator p. 7
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
Facilitative-narrow mediator p. 7
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
Evaluative broad mediator p.8
Interests > positions
Emphasizes her own understanding of the circumstances
Studies relevant documents
Facilitative broad
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
Different models for the primary goal of settlement of dispute
(1) Classic – Facilitative (or Elicitive)
(2) Classic – Evaluative (or Directive)
(3) Analytic
(4) Understanding-focused (understanding-based)
Understanding-based model
Parties are not questioned separately; Primary goal is that the parties understand each other; Parties are not allowed to go into caucus
Different models for the primary goal of transforming the relationship and conflict interaction
(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)
Transformative model
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
structure of “classic” mediation
(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
Pre-mediation preparation
- selecting mediator
- preparing and planning with client
- making pre-mediation submissions
- pre-mediation conferences with mediator
Understanding the problem (and demonstrating that understanding)
- facts
- law / rights
- interests
Classic mediation and key facilitative/elicitive interventions
- questioning (for concerns, for underlying interests)
- listening (for concerns, for underlying interests)
caucus
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
how the mediator demonstrates that they understand
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?”
Mediation and confidentiality:
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
The mediation privilege
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
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?
In caucus, you ask Sally Soprano what she would most like to accomplish through the mediation.
According to Riskin, a mediator with a “broad” agenda:
Encourages the parties to consider a wide range of issues and options to settle a dispute.
Which of the following is never a characteristic of mediation?
A binding decision by the neutral.
In mediation, a caucus is:
A meeting between the mediator and just one side in the mediation.
Which of the following statements is true?
Lawyers should prepare their clients for mediation.
Communications that occur in mediation:
Are confidential, but in general they will be inadmissible at trial only if a statute or rule provides for a mediation privilege.
subject matter expertise in mediation
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
Regulation / licensing of mediators: General
Like for arbitration, there are no specific requirements
Regulation / licensing of mediators: Court-connected mediation
You would need to meet requirements for state specific courts
Usually, take a credential mediation skills training (around 40 hours)
Regulation / licensing of mediators: Private organisations – AAA, JAMS
They will conduct their own training, or require training
They will look at the persons substantive experience
Court order mediation
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%)
Judicial mediation (aka. judicial settlement conference)
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
Mediation role within summary jury trial
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)
Special master as mediator
People may not always be called mediator but are playing a mediator type role
When lawyers serve as mediators:
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.
Which of the following is most accurate?
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.
Stages of mediation
- Agreeing to mediate
- Understanding the problem
- Generating options
- Reaching agreement
- Implementing the agreement
