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.
- The mediator may be wrong. If case subsequently goes to court and the judge rules differently, the mediator loses credibility. (This is a higher risk in a court with a judge pro tem than with a commissioner or judge; it is hard to accurately predict what a judge pro tem will do.)
- The mediation process may be compromised. By giving an assessment of the legal merits of the claims, the mediator substantially increases the likelihood that one or more of the parties feel that the process is unfair or biased. The mediation shifts from a focus on process to a focus on substance – at a cost to the process.
- The mediator may be engaging in the unauthorized practice of law. It is not lawful for the mediator to apply knowledge of the law to the specific facts of the underlying dispute. (This is a big temptation for most law students.)
2. Generally, follow a more facilitative approach.
- It’s better for a party to reach his/her own conclusions regarding the merits of the case, or for a party to consider what might or might not happen in court. Ask questions instead of making statements.
- Follow the parties lead whether to have a narrow focus (on the legal issues involved) or whether to also include other non-legal issues as well (or sometimes in lieu of legal issues – such as where the relational issues are at the core of the dispute).
3. Remember to provide a FAIR PROCESS.
- Respectfully listen to both parties.
- Give each side a reasonable amount of time to tell their story.
- If the mediator looks at written information presented by one party, the mediator needs to look at written information presented by the other. Or better yet, the mediator could direct this information sharing to the parties – making sure that they review each other’s information. It matters more what they think than what the mediator thinks.
- If the mediator caucuses with one side, the mediator should caucus with the other.
- After the mediation or court proceedings conclude, the mediator should maintain the appearance of neutrality (for example, to not discuss the case with one party while the other is still around).
- Generally, people will be satisfied if they feel the process is fair, even if they are not happy with the outcome.
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.
This site managed with Dynamic Website Technology
Products and Services