5 Suggested “Rules of Thumb” for Effective Mediation in Small
1. Generally, try not to evaluate the legal merits of cases or predict court outcomes.
2. Generally, follow a more facilitative approach.
3. Remember to provide a FAIR PROCESS.
4. Take time to find out what the parties want.
The mediator should not presume that the case is all about the legal issues presented. It may be helpful to ask the parties at the outset, “What are your expectations or hopes for this meeting?” It will be good for the mediator to find out if:
· A party comes into mediation with an expectation of a distributive bargaining process – starting with a wide settlement range and working toward a financial compromise – to work out a deal.
· A party wants the opportunity to tell a lengthy story (or go through a lot of evidence) that he/she will not have time to tell (or show) in court.
· A party wants you to tell him/her that he/she is “right.”
· A party simply wants to talk with the other party (small claims “divorce”)
· A party wants to talk about non-legal interests – have a broader discussion than the legal issues on the table.
· A party expects to get nowhere – perhaps has a huge issue with not trusting the other party.
· A party wants to get nowhere - A party is using the mediation process to manipulate.
· A party just wants to get back to court.
5. If it appears that parties really want a judgment, an authoritative legal evaluation and/or vindication (their “day in court”) refer them to court.
· A good mediator won’t get too wrapped up in his/her own resolution rate or other definition of “successful mediation.”
· It is possible that even if the mediator helps the parties reach a negotiated settlement, one or more of the parties will not be satisfied because what he/she really wants is for someone with legal authority to say, “You are right.” A mediator cannot give that vindication. Maybe the party needs his/her “day in court” to experience closure.
· This is especially important to consider where the commissioner is mandating mediation. If the judge requires the parties to meet with the mediator and if the mediator is overly concerned about keeping the parties in mediation, the process may not feel voluntary at all. People need to understand that their participation in mediation really is voluntary, despite the fact that the judge required that they meet with the mediator. If, after the mediator has made a reasonable effort to convince a party to participate in mediation, that party is still adamant about not mediating, the case needs to be referred back to court.
· Also consider timing. The most appropriate solution may be for the parties to continue the case to collect more information, prepare better, etc. Suggesting the option of a continuance (in caucus – to avoid the appearance of bias) may be more helpful to the resolution of the case than pushing it into a mediated settlement.