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A Role of the Mediator?: Assisting Participants to be Ready to Mediate

July 23, 2011

The role of the mediator in aiding the advance preparation of the parties to mediate is debated and fairly debatable.

Some mediators suggest that, like a judge, a mediator should only react to the preparation level of the participants that exists at mediation without any advance intervention or assistance from the mediator.  To do otherwise, they suggest, invites a danger of losing some element of neutrality to the parties and the process.

However, a persuasive counter-argument to me is that because the primary role of the mediator is solely to assist the parties to achieve a voluntary resolution, that any neutral preparation assistance that can be offered, to either or both sides, to aid all parties to find resolution, is one of the primary duties of the mediator.

In fairness, some mediators opinions or this subject may be driven by their personal or professional habits, the subject matter of the dispute,  real or perceived additional costs in time or money, their own particular preferences or the preferences of those who ask them to mediate.

I personally believe and contend that , like judges and the legal process, the mediator has a higher calling to the mediation process than simply being a passive witness to the dispute preparation found at hand on the day of the formal mediation conference.  Like our judges who must first uphold the integrity of  our basic  justice system , I believe it is incumbent upon mediators to constantly strive to improve the process of mediation as a valid alternative to litigation.

I also contend that by helping both sides prepare for their mediation, the true goal of the process, seeking a party-driven, voluntary resolution that is acceptable to both sides, is enhanced and thus all parties benefit equally.

Clearly some “help” is probably not acceptable.  While some may be mandatory.   Giving legal advice to either side, at any point in the mediation process, for example, seems at the least contrary to the appearance of neutrality.  At the other extreme, advising both sides, in advance, about simple professional courtesies and party cooperation in mediation is quite acceptable.

And, to me, recommending the timely exchange of legally permissible advance information seems quite clearly in the interest of the mutual goal of all to resolution.

However, even these preparation considerations can be tricky.  For example, giving generic legal advice about trial/mediation exhibit preparation and presentation for the purposes of a more meaningful mediation process, before speaking to the opposition might be acceptable.  However, similar suggestions, could be criticised, after contact  with an opposing party, as unconsciously divulging some confidence. 

And, while advising both sides of the timely exchange of all reasonable exchangeable evidence in advance of mediation might be prudent for the purposes of mediation, some might complain that the advice of correction of any lapse by the opposition might compromise a strategy of the party for a later trial.

So what is a mediator to do? 

Answer:  Ultimately, each mediator will have to develop their own considered technique for ethically assisting all of the parties to a more successful mediation process.

Some early suggestions to consider.

First, be timely with your suggestions.   Although, suggestions “for the good of all” are always helpful, if possible, I try to speak with the legal representatives of my parties at least thirty (30) days prior to their scheduled mediation.   All lawyers are busy and decision-makers need time to consider new information, so early is always better than later.

Second, as likely any resolution of a monetary dispute begins with the willingness of the “Defendant” to pay something to the “Plaintiff” (or it will likely be a very short mediation), I like to conference first with the Defendant, if logistically possible.  Among other important pre-mediation questions I pose, the first, almost invariably, is “Do you have all you need from the Plaintiff for a meaningful mediation?”  And, implicit in my inquiry is whether it was received in time for full evaluation by the decision-makers of the Defendant.

I then usually inquire as to what are the key issues that need resolution along the road to a complete resolution.  And, what evidence or law or argument might be most persuasive, if any, on the issue or issues.  I then always inquire as to what, if any, of those matters I may disclose to the other side in an effort to make sure the opposition is prepared to fully address the needs of those who might write any final check.

There are other personal and strategy matters about which I inquire that I find keys to mediation success, but those will take another article or seminar to review.

Third, I contact the opposing party.  I then repeat the inquiry about what they may still be needing from their opposition.  I then quickly follow with whether they feel there is anything that they owe the opposition that would be helpful to resolution.   Not surprisingly, what is required and what is owed, in the minds of the better attorneys, is equally known to all.  My job, then, is simply to remind that timeliness (and completeness) is critical.

Then, as most mediations have the Plaintiff with the primary burden of proof,  if permitted (often actually encouraged by the better opposition lawyers), I will offer tangible suggestions as to how openings can be made more meaningful (longer, shorter, more pointed), what exhibits might be (needed) or more useful (less, but on more informative subjects), what issues need the most effort (remember limited time), and what participants (and when) might play the greater role to achieve a mutual resolution.

Many mediations resolve despite my recommendations and efforts.  Many more resolve, following my recommendations.  And, of those that do not, I can almost always attribute some pre-mediation event (or non-event) as the culprit.

I, for one, therefore, believe it is one of the most important roles of the mediator, if permitted, to assist all of the participants, pre-mediation, to prepare for a better mediation experience.

What Do You Think? Your Insight Can Be Helpful To Others.

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