MEDIATION

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MEDIATION
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What is mediation?

• Mediation is often referred to as being assisted
  negotiation.
• It is a voluntary process in which parties
  attempt to resolve a dispute with the help of a
  neutral 3rd party called a mediator.
• The mediator is not a judge and does not decide
  who is right.
• Mediators use many of the skills that negotiators
  use.

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What types of disputes can be mediated?

• Civil litigation
• Family/divorce
• Consumer
• Workplace/employment
• Neighborhood
• Landlord/ tenant
• Business contracts
• Disability issues
• School
• Church

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When is mediation NOT appropriate?

• An incident had just occurred and people are too
  upset.
• One party is using mediation to escalate the
  dispute
• One party seems incapable of listening
• One party might be better off using the courts
• The issue deserves public attention.

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TYPES OF MEDIATION

• Facilitative
• Evaluative
• Transformational

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WHY MEDIATE?

• Economical Decisions
• Rapid Settlements
• Mutually Satisfactory Outcomes
• High Rate of Compliance
• Comprehensive and Customized Agreements
• Greater Degree of Control and Predictability
• Personal Empowerment
• Preservation of an Ongoing Relationship or
  Termination of a Relationship in a More Amicable
  Way
• Workable and Implementable Decisions
• Agreements that are Better than Simple
  Compromises or Win/Lose Outcomes Decisions that
  Hold Up Over Time

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STEPS IN THE MEDIATION PROCESS

• Mediator opening statement
• Party opening statements
• Exchange/negotiation
• Caucuses
• Closure/agreement

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MEDIATOR OPENING

• Welcome and introduction
• Purpose of mediation the mediators role
• Logistics timeframe, breaks, restrooms
• Confidentiality explained
• Agenda
• Caucusing explained
• Ground rules
• Questions
• Commitment to proceed

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THE MEDIATORS ROLE

• Convener
• Educator
• Communication Facilitator
• Translator
• Questioner and Clarifier
• Process Advisor
• Angel of Realities
• Catalyst
• Responsible Detail Person

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HOW TO OVERCOME IMPASSEby Department of Veterans
Affairs

• http//www.mediate.com/articles/va2.cfm

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MODEL STANDARDS OF CONDUCT FOR MEDIATORS

• Self-Determination
• Impartiality
• Conflicts of Interest
• Competence
• Confidentiality
• Quality of Process
• Advertising and Solicitation
• Fees
• Obligation to the Mediation Process

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Uniform Mediation Act of 2001 (Amended in 2003).

• Adopted by
• District of Columbia
• Illinois
• Iowa
• Nebraska
• New Jersey
• Ohio
• South Dakota
• Utah
• Vermont
• Washington
• Idaho
• Proposed in 2008 by
• New York

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What legal protections apply to insure
confidentiality in mediation?

• Contractual agreements
• Statutory protection
• Federal Protections
• Federal Rules of Evidence 408 protects against
  admissibility of offers and compromises or
  conduct and statements in negotiations
• Federal Rules of Civil Procedure 68 prohibits
  later admissibility of offers in negotiations
  conducted during litigation.
• State Protections Vary

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Ga. Alternate Disp. Resol. Rule 7

• Any statement made during a court-annexed or
  court-referred mediation or case evaluation or
  early neutral evaluation conference or as part of
  intake by program staff in preparation for a
  mediation, case evaluation or early neutral
  evaluation is confidential,
• not subject to disclosure,
• may not be disclosed by the neutral or program
  staff, and
• may not be used as evidence in any subsequent
  administrative or judicial proceeding.

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Ga. Alternate Disp. Resol. Rule 7

• Any document or other evidence is not subject to
  discovery.
• A written and executed agreement or memorandum of
  agreement resulting from a court-annexed or
  court-referred ADR process is discoverable unless
  the parties agree otherwise in writing.

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Ga. Alternate Disp. Resol. Rule 7

• Neither the neutral nor any observer in a
  court-annexed or court-referred ADR process may
  be subpoenaed or otherwise required to testify
  concerning a mediation in any subsequent
  administrative or judicial proceeding.
• A neutral's notes or records are not subject to
  discovery.

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Confidentiality does not extend to

• a situation in which
• a) there are threats of imminent violence to self
  or others or
• b) the mediator believes that a child is abused
  or that the safety of any party or third person
  is in danger.
• documents or communications relevant to legal
  claims or disciplinary complaints brought against
  a neutral or an ADR program and arising out of an
  ADR process.
• Documents or communications relevant to such
  claims or complaints may be revealed only to the
  extent necessary to protect the neutral or ADR
  program.
• Parties should be informed of limitations on
  confidentiality at the beginning of the
  conference.
• (Ga. Alternate Disp. Resol. Rule 7)