Characteristics of Mediation

1
Characteristics of Mediation

• Facilitated Negotiation
• Party Control and empowerment
• Private
• Legal subservience
• Consensual
• Promotes common interests
• Empowerment and recognition

2
Styles of Mediation

• Substance-oriented mediation
• Process-oriented mediation
• Transformative mediation

3
Styles of Mediation

• Information Centered Mediation
• Process Centered Mediation

4
Styles of Mediation

• Evaluative
• Facilitative
• Transformative

5
Questions

• If the client is at the center of the process
  (Brand), how does this impact the lawyers duty
  to zealously represent her client?
• In facilitative/process centered mediations,
  should the mediator ignore or involve the lawyer?

6
Stages of Mediation

• Preliminary Stage
• Mediator Selection
• http//www.mediatorindex.com/
• http//alabamaadr.org/flashSite/rosters/mediator.c
  fm
• What style mediator?
• What level of expertise, if any, needed?
• Co-mediators??
• Court-appointed

7
Stages of Mediation

1. Preliminary Stage
2. Initial Session
3. Caucusing
4. Mediating process
5. Closing

8
Preliminary Stage

• Timing of initial mediation intervention
• Too early, not enough information
• Too late, invested in positions and costs
• Party and mediator preparation
• Prepare your client regarding process
• Discuss role you and client each will take
• Prepare yourself as for negotiation

9
Preliminary Stage continued

• 3. Preliminary mediator-party contact
• Important for mediator to avoid appearance of
  bias/favoritism
• Lawyers should have a prepared overview of the
  case to share during first contact

10
The Initial Session

• 1. Neutral location
• What shape table
• Who is in control
• Overview of mediation
• Stress confidentiality
• Summary of position by each side

11
The Mediating Process

• 1. Active listening
• Venting
• Generate options
• Passive approach when parties negotiate well
• Clients present or not? Why?

12
The Caucus

• Need party agreement to use this process
• Can be isolated or become shuttle diplomacy
• Maintaining confidences after caucus
• Caucus may help identify intra-group conflicts

13
The Closing Stage

• Always commit the terms to writing
• Who drafts the agreement?
• What if there is no agreement?

14
Confidentiality

• Imposed on the mediator
• Imposed on the parties
• Created by agreement
• Created by rule or statute

15
Lawyers Role in Mediation

• Should lawyers be present?
• Kaiser Foundation v. Doe p. 237
• What should the lawyer have done differently, if
  anything?
• What should the plaintiffs lawyers done
  differently, if anything?

16
Mediator Ethics and Professionalism

• Impact of self-determination
• Mediator must be impartial
• Disclosure of conflicts of interest
• Must be competent for the needs of the mediation
• Protect confidentiality

17
Mediator Immunity

• Should mediators have immunity?
• Pros
• Cons
• Is there a difference between private and
  court-appointed mediators?
• Wagshal v. Foster p. 257