Chapter 2. The Mediation Process 164 results (showing 5 best matches)
- National, state and local bar associations have played a large role in the development of mediation use. It was particularly important that the organized bar supported mediation, as many lawyers and judges were initially hesitant about its use in litigation. In a few jurisdictions, some lawyers are still reluctant to use mediation. However, as mediation use is often mandated in litigation and legal education continues to introduce mediation early in a lawyer’s career, increased acceptance is likely.
- Some of the very early programs using mediation in court cases can be traced to work with the community mediation centers. Initially, the Department of Justice evaluated these community mediation programs. They were found to be quite successful, which led to an exploration of mediation use in small claims disputes. As these “smaller” cases were resolved, mediation was considered for larger, more complex cases.
- It is clear that various forms of mediation are deep-rooted in human interaction. In many cultures, the norm is harmony and consensus. Mediation has been used extensively to resolve conflict. In fact, mediation is one of the oldest methods for dispute resolution used worldwide (Wall, et al.). Mediation is broadly defined as a process where an impartial person assists others in reaching a resolution of a conflict or dispute. In fact, there is even some evidence of mediation in deity interaction. References to ancient types of conciliatory approaches are plentiful and are often grounded in a combination of culture and religious teachings.
- Additionally, with the simultaneous focus on clinical, practical legal education, the number of schools offering clinical experiences in mediation has also grown. In mediation clinics, law students conduct actual mediations, and a few even provide students the opportunity to represent clients at a mediation. Several law schools now offer specializations in dispute resolution noted by a separate certificate, and a few law schools offer an LL.M. degree in dispute resolution.
- With the advent of no fault and “do-it-yourself” divorces, family law was ripe for mediation use. These factors, combined with the recognition that an adversarial approach to divorce was not always in the best interests of the parties, particularly children, led to the implementation of divorce mediation. In addition, early work of the Association of Family and Conciliation Courts, which was established in 1963, paved the way for innovation in family law, including mediation use. As a result, the late 1970s and early 1980s saw a dramatic increase in the use of mediation to effectuate divorce settlement.
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Chapter 4. Getting to the Mediation 111 results (showing 5 best matches)
- While many individuals urge an increase in mediation use, citing the numerous benefits of the process, others contend that mediation can be detrimental, especially when mandated. Examples include situations where there is an imbalance of power between the parties or where individuals may fare worse in mediation than in an adjudicatory or rule guided process. Because mediation is private and the process flexible, no real procedural safeguards exist. Such contentions have been a source of controversy, most specifically with regard to mandatory mediation.
- Currently, the most common method of compelling parties to mediation involves a court order. As courts became more interested in getting parties to mediation and lawyers were reluctant to suggest it, many courts became advocates for the mediation process. A variety of methods exist by which courts refer pending litigation to mediation. These mandates have also been effective in increasing awareness about the process.
- The location for the mediation is another matter which is decided and communicated in advance. In court programs, mediations generally take place in the courthouse, perhaps in a jury room that is not occupied. In the private sector, most mediators have office space or rent conference rooms. In community programs, mediation occurs at the program office. Alternatively, if a program is a run by government entity, official buildings are often available. One of the most important factors in location determination is to assure that the site for mediation is a neutral one.
- A court mandate can get reluctant or hesitant parties to the mediation table. For example, in pending court cases, many lawyers were initially reluctant to try mediation, and were not inclined to suggest it to their clients or opposing counsel. One primary concern was that such a suggestion would be interpreted as a sign of weakness or as having an ineffective case. When courts required mediation however, lawyers had no choice; their fear that discussing mediation would be misinterpreted was alleviated. The belief that the initial impetus for mediation should come from outside of the dispute, especially from a higher authority, such as a court, is often the basis for mandatory mediation schemes. Others believe that as mediation gains familiarity in the legal system, it is likely that more litigants as well as their lawyers will decide to voluntarily undertake mediation, lessening the need for a mandatory approach.
- Many people seek legal advice and commence lawsuits when confronting a dispute or conflict. Although mediation is used before lawsuits are filed, primarily in contractual matters, a great deal of mediation use is subsequent to the filing of a lawsuit. While public awareness of mediation is increasing, mediation is not often the first process considered when individuals think about ways to resolve disputes.
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Appendix B. Uniform Mediation Act 87 results (showing 5 best matches)
- Uniform Mediation Act
- (2) “Mediation communication” means a statement, whether oral or in a record or verbal or nonverbal, that occurs during a mediation or is made for purposes of considering, conducting, participating in, initiating, continuing, or reconvening a mediation or retaining a mediator.
- (c) If the parties agree in advance in a signed record, or a record of proceeding reflects agreement by the parties, that all or part of a mediation is not privileged, the privileges under Sections 4 through 6 do not apply to the mediation or part agreed upon. However, Sections 4 through 6 apply to a mediation communication made by a person that has not received actual notice of the agreement before the communication is made.
- (1) make an inquiry that is reasonable under the circumstances to determine whether there are any known facts that a reasonable individual would consider likely to affect the impartiality of the mediator, including a financial or personal interest in the outcome of the mediation and an existing or past relationship with a mediation party or foreseeable participant in the mediation; and
- SECTION 10. PARTICIPATION IN MEDIATION
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Chapter 11. Specialized Applications of Mediation 111 results (showing 5 best matches)
- While mediation is an adaptable process, with several modifications, there are also several defining characteristics which are present in most “generic” mediations. For example, the preservation of neutrality and promise of confidentiality are important in nearly all mediations. There is also an implicit assumption that the mediation session will either result in an agreement or an impasse. Mediation is commonly viewed as a single, one-time intervention, and not a process that takes place over several days, weeks or months. This more generic approach is often adapted in unique ways to assist in the resolution of a particular specialty or specific subject matter. Some of the more specialized applications require mediators to attend additional training for that particular adaptation of the process. Even in situations where further training is not explicitly required such as in employment cases, most programs and consumers may be assured of added quality if additional and specialized...
- Applications of family mediation continue to increase, particularly in situations where families have been redefined. For example, mediation is quite effective in resolving gay and lesbian separation and custody matters. It may also be effective when a grandparent or other relative asserts their desire to have visitation with the child or a hand in making decisions pertaining to the child. In some states, mediation is used in matters concerning the termination of parental rights. At least one state has implemented a statewide program in this area. Mediation is frequently used at an early stage, for instance, when children are first removed from the home, to assist in parent behavior modification, and to determine the possibility of reuniting the family. Mediation is also used in the later stages of the process to finalize the conditions of termination of parental rights or an adoption.
- Basic mediation trainings may include a component on cultural matters, but is not examined in any depth. While specialized trainings in cross-cultural mediation do exist, difficulties arise when balancing the impacts culture may have on the mediation without excessively relying on stereotypes. Understanding cultural characteristics is balanced with a recognition of individual differences.
- The REDRESS program embraced a particular style of mediation known as the transformative model. In doing so, there was an implicit acknowledgement that these types of cases are often relational in nature. The transformative approach to mediation is based upon the premise that mediation has the potential to transform people. Founded upon principles of party empowerment and recognition, this model of mediation focuses primarily on the relationship between the parties, rather than on outcome. Mediators in the REDRESS program were required to attend additional training in the transformative model prior to acceptance on the roster of approved mediators.
- Used in a number of situations, the co-mediation model is highlighted only to distinguish it from the more basic one mediator model. While little specialized training takes place with regard to co-mediation, particular nuances do exist (Love & Stulberg). For example, in most models of co-mediation there is a shared responsibility for the process. One mediator does not take “the lead” with the other merely following. Instead, the responsibility for the mediation rests equally with each mediator, although there may never be a completely equal division of labor.
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Chapter 1. Mediation Distinguished From Other Dispute Resolution Processes 48 results (showing 5 best matches)
- This book provides a concise, yet comprehensive examination of the mediation process, particularly as it relates to the legal system and representation of clients. It should be noted that mediation is not a new method of dispute resolution, but rather one of multiple origins and backgrounds. While in the United States, as well as in many other countries, mediation is viewed as an innovative and viable alternative to the use of the court or justice system, mediation is in fact a quite ancient method of dispute resolution. In other cultures, and at an earlier time in the United States, mediation was viewed as a primary method of dispute resolution. In many instances, the contemporary perspective of mediation is that of one process in the panoply of dispute resolution methods. Consequently, it is important to first understand the contemporary alternative dispute resolution (ADR) movement in light of its relationship with modern day courts, the legal system, and commercial endeavors.
- An understanding of the theories and origins of conflict and disputing can enhance an individual’s effectiveness in mediation. Such awareness assists mediators and other participants in understanding the perspectives, beliefs and feelings that accompany and impact the mediation participants. Examining one’s own perspective of conflict is an important aspect in understanding common reactions in dispute situations. The orientation and strategies a mediator may utilize during the process may be a product of that individual’s view of conflict. The approaches parties may take in mediation are also, in part, dependent upon their previous experiences with conflict.
- Mediators should be familiar with the different ADR processes for several reasons. First, it is important that mediators distinguish mediation as a distinct process. Secondly, in those cases where mediation is not appropriate, or not able to resolve the matter, mediators are often in the best position to make suggestions of, or referrals to, other processes. Additionally, as the practice of mediation evolves and mediation is combined with other processes, an understanding of the differences as well as the similarities is beneficial in designing hybrid and combination processes.
- Many dispute resolution processes involve the assistance of a third-party neutral, which can be one person or several individuals. In addition, direct negotiation, whether conducted by the parties themselves or their agents, such as lawyers, is also considered a type of ADR. The ADR processes utilizing neutrals can be viewed in three primary categories: adjudicative, evaluative and facilitative. Within the categories, different processes exist. A few are described below so that mediation may be clearly distinguished from them. It is also possible to combine ADR process with one another. The most common is med-arb, that is mediation followed by arbitration, often with the same individual serving in both roles. Examples of the combination and hybrid processes which involve mediation will be examined in Chapter Twelve.
- Current informal and anecdotal reports indicate that most ADR procedures have been successful in effectuating settlements in a variety of cases. After consideration of the client’s objectives and an analysis of the available dispute resolution techniques, it is likely that an appropriate procedure can either be found or designed. Because of its flexible nature and informality, mediation is often a first step.
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Chapter 5. The Obligation to Mediate 102 results (showing 5 best matches)
- Another problem arises in situations where an insurance carrier for a party is the one to ultimately decide whether or not a matter settles. In automobile matters, for example, even though the true defendant is an individual, it is the insurance company who pays for and oversees litigation, and makes final settlement decisions. Often times, the actual defendant is not even present at mediation, and is not required to consent to any settlement. In addition, the insurance industry is hierarchical, with multiple levels of authority and decision making capacity. In any one day, a major insurance company may have hundreds of mediations occurring simultaneously throughout the country, rendering the presence of the ultimate decision maker at every mediation impossible. An insurance adjuster attends the mediation with a certain pre-determined limit of monetary settlement authority. In order to obtain additional authority, the representative may have to telephone the regional ...an...
- In a number of states, statutes which mandate or merely suggest mediation also include a good faith provision. For example, one of the first reported cases involved mediation of farmer-lender disputes. A Minnesota statute obligated the parties to mediate in good faith and specifically defined that obligation (MINN. STAT. ANN. § 583.27). In Texas, statutes require mediation in family law cases and further state that the process be conducted in good faith, although a specific definition of the term is absent (TEX. FAM. CODE § 6.602). Delaware and Hawaii statutes direct the mediator in adult guardianships and probate matters to terminate the mediation if a party is not mediating in good faith (DEL. CH. CT. R. 174.1; HAW. PROB. RULE 2.1). A Florida statute provides that in nursing home cases all parties must mediate in good faith (FLA. STAT. ANN. § 400.0233). Even more comprehensive, an Indiana rule clearly imposes a general requirement of good faith in mediation on the parties as well...
- One argument in favor of a good faith standard is the need for a process where the participants can be assured that all are treated equally. Even more compelling is that a good faith requirement can discourage a party from misusing mediation to disadvantage a party. Examples include situations where mediation is scheduled to increase expense for the less affluent party or solely to gain information or conduct informal discovery. Most analysts agree that mediation will be productive and fruitful only if all participants take an active role in the process. A good faith standard can aid in such efforts. Good faith also assists in assuring honesty in the process. When a participant in mediation takes an adversarial or belligerent approach, the process is often derailed and impasse results. An obligation of good faith would likely deter this type of inefficient conduct.
- In the contractual situation, mediation is sometimes considered a condition precedent to taking another action. For example, some contracts require mediation before pursuing another course of action such as arbitration or litigation ( , 936 S.W.2d 16 (Tex.App.—San Antonio 1996)). In order to access another dispute resolution procedure, the parties must have participated in mediation. In those instances where mediation is designated as a condition precedent to other action, such as arbitration or litigation, courts have dismissed the action, stating that the correct procedure would be to first seek judicial enforcement of the mediation provision. Another court noted that the failure to mediate may, in fact, be actionable as a breach of contract ( ., 541 F.Supp.2d 839 (N.D.Tex.2008)). In addition, cases hold that parties can waive their right to compel mediation by proceeding with litigation.
- As the world becomes smaller, it is not uncommon that disputes arise which involve a number of individuals residing in different countries. While the best situation for mediation remains to have all of the parties together in person, it simply may not be possible. Although courts have ordered litigants to travel long distances to attend mediation, usually these are situations where the party is named in a lawsuit. While in most cases such an order is upheld, other alternatives show promise. When mediations are conducted pursuant to contract, the issue remains open as to whether a court will order such attendance. In other cases, travel may be cost prohibitive or timing factors make attendance impossible. In those instances, different alternatives for the mediation process should be explored.
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Chapter 6. Issues Surrounding Mediator Neutrality and Impartiality 78 results (showing 5 best matches)
- In rare cases, discussion of an illegal or immoral matter may occur at mediation. With regard to moral matters, the decision to continue or alternatively, to terminate the mediation is within the discretion of the mediator. Most experts and practitioners contend that should an illegal matter surface during mediation, such as the option of paying past due rent with cocaine, then the mediator should immediately terminate the session. Exceptions, of course, are in the mediation of criminal matters and victim-offender mediations. Even in those instances, however, mediators do not condone illegal agreements.
- Potential relationships with participants after the mediation may not be as obvious a threat to neutrality, but these future relationships can be problematic, particularly from the view of the participants. One concern raised in the literature involves repeat players—those individuals who use the mediator’s services on a regular basis. For example, consider one party, perhaps a plaintiff in a personal injury lawsuit, who is a one-time user of mediation. The defendant is an insurance company that has hundreds, possibly thousands of cases it will be taking to mediation. Although most mediators contend they remain neutral and completely impartial regardless of potential future business, a significant amount of repeat business could jeopardize the perception of neutrality. While these situations raise issues for the mediation participants, such practices can also impact the public’s perception of the mediation profession.
- In mediation literature, the terms neutrality and impartiality are often used interchangeably. Both describe a basic principle of the mediation process, and in fact, for many years it was assumed that neutrality was integral to mediation. Matters of neutrality and impartiality are also quite frequently included as primary elements of codes of ethics for mediators. (See Chapter Nine for further discussion of ethics.).
- In some cases, challenges to neutrality may arise after the mediation. While this type of situation will not directly affect the outcome since the mediation has ended, it can have an impact on the parties’ perception of the mediation process. For example, if the mediator and one of the parties continue a business relationship, whether in the context of the mediation or in subsequent representation, this may cause the other party to be concerned about the neutrality of the mediator during the session. Although ethical standards are in place for mediators, few specific rules or guidelines exist that govern how mediators should behave when faced with these subsequent situations. Most often it remains an issue that mediators answer on an individual basis.
- Finally, the appropriate time to provide such information or advice is another important consideration. In most instances, mediators would prefer that the parties have all of the necessary information in advance of the mediation. In many cases, however, an awareness of the lack of information only arises during the mediation itself.
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Chapter 9. Ethical Considerations 96 results (showing 5 best matches)
- The parties also may be bound by certain ethical guidelines associated with their primary profession. For example, professionals such as accountants and physicians often participate in mediation as parties negotiating past due accounts in small claims courts. These professionals may also find their way to the mediation table in response to a claim of malpractice. Ethical concerns may arise in the course of the mediation and could even be the subject of the dispute. For instance, doctors have specific ethical guidelines which must be adhered to when dealing with a patient. It is likely that these guidelines will continue to be operable in a mediation session between the physician and her patient. Lawyers also have ethical and professional duties to clients. On occasions, a lawyer’s conduct during a mediation may give rise to a malpractice claim (Alford). Yet in a least one case, the court determined that mediation confidentiality prohibited the submission of evidence of lawyer...
- Although divergent views concerning mediation exist, there is likely universal agreement that mediation is a flexible process. Flexibility is advantageous in allowing mediation wide applicability and effectiveness in the resolution of an extremely varied array of disputes. Adaptations have been made, creating many different or specialized applications of the process. However, this flexibility makes it difficult to provide a simple definition of the process. The difficulty in defining mediation specifically and precisely contributes to the complications in determining appropriate ethics and standards of practice, especially those with detailed provisions.
- For many years, it has been thought that everything in mediation should be absolutely confidential. Yet, as the use of mediation has increased, a number of situations have surfaced, emphasizing the need for a new examination of mediation confidentiality provisions. In many instances, confidentiality is established through legal channels such as statutes or court rules. In addition, ethical provisions for mediators include confidentiality constraints.
- Enacting a specific and detailed code of ethics for mediators is a good foundation upon which to foster trust and build confidence in the mediation process. Consumers of mediation services, however, want to be assured that mediators are held accountable to such standards on a regular and continuing basis. While codes that are aspirational are valuable in improving the profession of mediation, some experts contend that it is only with strict enforcement mechanisms that parties can be assured of consistent and professional standards for the mediation process.
- Interestingly, however, in the mediation profession, some of the programs and centers in the United States have decided to first employ a more facilitative approach before progressing to a full evidentiary hearing. Any process that is used to determine violations of ethical rules in mediation however, most likely necessitates an exception to provisions of confidentiality.
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Chapter 7. Confidentiality in Mediation 110 results (showing 5 best matches)
- The arguments for maintaining confidentiality in mediation are numerous, and many date back to the early work done in the mediation field. In fact, one primary assertion is that confidentiality has always been part of the mediation process. This premise of confidentiality serves as the foundation for the assumption that disclosures made by the parties are maintained in secrecy by the mediator. Another consideration relates to the trust developed in mediation. In many ways, establishing trust between the participants and the mediator is at the core of the process. Parties are more likely to disclose important information and personal needs if they feel that they can trust the mediator. Because of the nature of a dispute, participants in a mediation may inherently distrust one another and may be unwilling to share information. One way that the mediator establishes a trusting and comfortable environment is to assure the participants of confidentiality.
- In many instances, provisions state that if evidence or information is discoverable then it remains so, even if it was used in mediation. This rule is designed to prevent a party from hiding information through the mediation process. Yet, documents which are made for mediation are thought to be protected. In a Texas case, however, the court allowed the parties to discover a videotape made solely for the purposes of the mediation (
- While an evidentiary exclusion is a form of protection that disallows testimony in a court, arbitration or administrative hearing, it does not prohibit general disclosures. When the only form of confidentiality is through an exclusion of evidence, the parties and the mediator remain free to discuss all matters concerning the mediation outside of a court proceeding, unless other protections are in place. Because rules of evidence do not apply in mediations, it is also quite likely that evidence not allowed in court due to an exclusion would be open for discussion in a subsequent mediation.
- Other outside parties who are involved or tangentially related to the dispute may also be entitled to a confidentiality protection. For example, children in divorce mediation, while technically not parties, are greatly affected by the discussions during mediation, as well as the ultimate resolution. In mediations where criminal acts are an issue, such as in victim-offender mediations, parties may not feel comfortable discussing matters of a personal nature unless they are assured that the information will not be used at a later proceeding. Broad grants of confidentiality also work to keep courts from becoming overly involved in the mediation process.
- For instance, if a mediator is prohibited from disclosing anything that happened at mediation other than the fact that the parties were present (and some would contend even the fact of attendance is confidential), then parties might misuse the mediation session to accomplish other objectives. One example is scheduling mediation for the sole purpose of delaying litigation or to postpone a trial setting. Another tactic is for a party to voluntarily attend mediation and, once present, refuse to negotiate. Misrepresentations of information during the mediation have also been reported, and the confidential aspect of mediation could encourage some participants to be less than honest in their negotiations. If a party relies on misrepresentations made by the other side during mediation, it would be nearly impossible to prove a contract defense of fraud if the mediation were deemed strictly confidential. These problems demonstrate a few situations which have concerned practitioners about...
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Appendix A. Standards of Conduct 71 results (showing 5 best matches)
- F. Subsequent to a mediation, a mediator shall not establish another relationship with any of the participants in any matter that would raise questions about the integrity of the mediation. When a mediator develops personal or professional relationships with parties, other individuals or organizations following a mediation in which they were involved, the mediator should consider factors such as time elapsed following the mediation, the nature of the relationships established, and services offered when determining whether the relationships might create a perceived or actual conflict of interest.
- A. A mediator shall conduct a mediation based on the principle of party self-determination. self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome. Parties may exercise self-determination at any stage of a mediation, including mediator selection, process design, participation in or withdrawal from the process, and outcomes.
- 6. A mediator shall not conduct a dispute resolution procedure other than mediation but label it mediation in an effort to gain the protection of rules, statutes, or other governing authorities pertaining to mediation.
- Mediation is used to resolve a broad range of conflicts within a variety of settings. These Standards are designed to serve as fundamental ethical guidelines for persons mediating in all practice contexts. They serve three primary goals: to guide the conduct of mediators; to inform the mediating parties; and to promote public confidence in mediation as a process for resolving disputes.
- 2. A mediator should not communicate to any non-participant information about how the parties acted in the mediation. A mediator may report, if required, whether parties appeared at a scheduled mediation and whether or not the parties reached a resolution.
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Chapter 10. Regulation of Mediators: Development of the Profession 89 results (showing 5 best matches)
- Most states and court programs that have established specific qualifications for mediators include training requirements. Common requirements are participation in a designated number of hours of mediation training and attending mediations in an observer capacity. Early in the community mediation movement, it was necessary to train the volunteers in the mediation process. Early training programs focused primarily on skill development, as the theory and law surrounding mediation had not matured. Some of the earlier trainings, such as those conducted by the Neighborhood Justice Centers in Atlanta and Kansas City, consisted of forty hours of instruction. As mediation grew and branched out in other areas, many mediators took the same training. In other instances, separate training programs were created.
- In most other professions, at least one year of schooling or education is necessary in order to be licensed or certified. Although most training required for mediation is limited, additional hours are sometimes required for specialty areas, such as in family and divorce mediation. Some colleges offer both undergraduate and graduate degree programs in conflict resolution that require a minimum of a year of study. If a mediation
- Another concern involves determining the methodologies through which regulation is established. Mediation is a more subjective practice, perhaps more of an art than a science. Defining the regulations with specificity may be quite challenging. Within the mediation community, great divergence exists just in terms of defining what mediation is, and in particular, the approaches to the process. Finally, numerous variations are possible with regard to the specific design of a regulatory scheme along with the specific components it should include. Some of these issues are examined in the next section.
- Some programs and courts require nothing more than a three to four hour orientation to the mediation process. This is particularly true where a graduate degree such as a law degree, is used as the indicator of mediator competency. Other programs and projects recognized a need for more specific training and education in mediation, and established extensive training programs, ranging from a minimum of sixteen hours to over forty hours. Currently, very few mediation trainings exceed sixty hours. Yet many in the field wonder if this is sufficient as it is rare that other professionals are trained for such a short period of time. As the mediation profession matures and evolves, an increase in the training requirements is possible.
- The issue of confidentiality in mediation has not been addressed directly in the context of complaints against mediators. In light of the holding in the Cassel case, which excluded evidence of legal malpractice which allegedly occurred in mediation, the question remains open as to whether a court will permit evidence about the mediator’s conduct. Of course, the inability to submit any evidence of what happened at the mediation would render the ability to bring a claim virtually impossible.
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Chapter 12. Derivative, Combination and Hybrid Processes 43 results (showing 5 best matches)
- Just as mediation has been combined with arbitration, it can also be joined with the evaluative ADR processes. The order of the processes varies. In some cases, parties need certain information to assist them in the negotiation of a settlement. Evaluative processes, such as the moderated settlement conference, neutral case evaluation, or the summary jury trial, could take place prior to the mediation. The parties may also try mediation first. If the mediation does not result in a settlement (primarily because of inaccurate or incomplete evaluation or assessment of the case), the mediator may recommend that the parties participate in an evaluative process. After the evaluative process, the parties may choose to mediate again or negotiate a resolution without the assistance of a neutral. Often through mediation, a determination can be made regarding what other dispute resolution process will best assist in the settlement of the matter. Such choices may be made by the mediator, the...
- As a result of these difficulties, another form of med-arb evolved. In the newer form, the parties attempt to mediate, but if a resolution is not achieved during the session, the parties begin arbitration with a individual serving as the arbitrator. The difficulty in this form of med-arb is that it is repetitious when mediation fails and as a result, more time-consuming and costly. A third form of the process attempts to eliminate the defects of the other methods and still provide the benefits of both mediation and arbitration. Specifically, the co-med-arb process uses two neutrals simultaneously listening to the initial statements of the parties. The first neutral then acts as the mediator, leading a neutral, impartial mediation session. Should that effort fail to completely resolve the matter, the second neutral presents the parties with a binding arbitration decision of those issues left undecided.
- The mini-trial uses mediation concepts in the facilitation of communication between the parties. The neutral expert advisor first provides the parties with an opportunity for direct negotiations. If the principals are unable to reach an accord, then the neutral expert advisor may actually mediate. The form of mediation, however, may be non-traditional. Generally, the neutral shares her evaluation, after which facilitated discussions resembling mediation take place.
- Combination dispute resolution describes a situation where one distinct process may be used after another, for example, a summary jury trial followed by mediation. The most common combined form is the med-arb process in which the parties first engage in the mediation process. If an agreement is not reached in a pre-determined amount of time (or at the discretion of the mediator), the parties enter arbitration. A number of different variations of this process are now available.
- Another potential factor is the length of the process. Basic mediation is usually considered a one-time intervention, except in some models of family or divorce mediation. Public policy matters are often complex, and due to the number of parties involved, frequently take much longer to resolve. As its name implies, consensus building is not a one-time intervention, but by design is a building process that takes place during a number of successive meetings, spread out over weeks or even months. Preparation can be more elaborate, so the pre-mediation phase is often quite lengthy. In fact, it can be the longest phase of the process.
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Chapter 8. Issues Surrounding the Mediation Agreement 46 results (showing 5 best matches)
- Detail issues commonly arise in employment cases. Many times, one substantive item often agreed to by the participants involves the former employer providing a letter of recommendation or a neutral reference letter. In these cases, it may be necessary to determine the content of the letter and allow an opportunity for its review while all parties are present at the mediation. Simply agreeing on a summary of the information to be included and assuming that the parties implicitly have the same understanding often results in additional difficulties after the mediation has been concluded. In some cases, this has resulted in additional mediation or court intervention.
- One of the benefits of mediation voiced early on was that parties who participate in reaching their own agreement are generally more satisfied with the content and, as a result, voluntarily comply with it. In contrast, in situations where a decision is imposed on the parties, they are less likely to be pleased with the outcome. With the initial success of mediation, it was expected that parties satisfied with their agreement would naturally comply with its terms. This led to the belief that technical or legal enforcement mechanisms were rarely necessary. Yet, the reality is that in some cases, parties fail to uphold their agreements. This seems to be more common in court-annexed matters. In some cases, it is inevitable—buyer’s remorse occurs, or parties simply change their minds. In other cases, conduct during the mediation may be at the root of noncompliance, especially if the party believes he may have been coerced, pressured or forced to reach an agreement. As a result, the party...
- Another possibility is that of an interim agreement. In some matters, immediate action may be necessary, for example to stop a foreclosure or to freeze assets. An interim agreement to refrain from some official action for instance, can provide the parties with a temporary solution, allow additional time to gather information, and continue the mediation in an attempt to reach a final solution.
- During the course of mediation, mediators generally make note of potential agreements or consensus points. As the mediation moves to the stage where an agreement is likely, the mediator narrows the focus of discussion in order to sort out the details of the potential resolution. This is followed by drafting the agreement or in some cases, the memorandum of agreement. In many, if not most instances, responsibility for drafting the agreement rests with the mediator. In some cases, however, for a variety of reasons, parties or their representatives (usually lawyers) assume the task of preparing the agreement.
- While the primary responsibility for drafting the agreement commonly rests with the mediator, the mediation participants may be in a position to provide assistance. Specifically, lawyers for the parties may draft the more complex documents, such as releases or other legal documents, which serve as attachments to the agreement. The lawyer representatives also tend to consider issues surrounding enforceability and durability of the agreement. It is not uncommon to have legal or practical constraints not considered during the mediation arise during the drafting stages. Thus, it is critical to proceed through the drafting stages while all parties and their representatives remain at the session. In some more complex cases, the agreement drafting phases of the process last nearly as long as the mediation itself.
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Chapter 3. Mediation as Facilitation of Negotiation 74 results (showing 5 best matches)
- Many people come to mediation without any real theoretical or practical knowledge about the negotiation process. This can be a problem for those who do not like to negotiate, and instead, would rather avoid conflict. In mediation, these people are not inclined to actively participate.
- Because mediators facilitate negotiation, ethical considerations that impact negotiators also influence the mediation process. By virtue of their role, mediators observe and may need to address the ethical issues that may arise during the process. Mediators may also assist in educating mediation participants, especially lawyers, about limitations on positional or adversarial bargaining.
- Mediation is quite often considered to be the facilitation of a negotiation. A mediator essentially intervenes in an unresolved negotiation. The parties are, for a variety of reasons, unable to reach an agreement without the assistance of an outside neutral person. The mediator’s role is to assist with, or facilitate, their negotiation. Because the bulk of the mediator’s work involves diagnosing, and then repairing difficulties in negotiation, it is imperative that mediators possess a working knowledge of the negotiation process.
- While many mediation educators and trainers strongly urge mediators to steer the parties toward an integrative, principled approach by searching for integrative potential, in some cases this may not be possible. Parties remain committed to a distributive, positional view of the negotiation. Mediators, therefore, must be aware of all the variables in negotiation and be prepared to utilize diverse approaches depending upon where the parties are in their efforts. In essence, one of the roles mediators serve is that of negotiation assistant or ‘coach’. Mediators first diagnose difficulties in negotiation and then assist parties in overcoming them.
- Strategies encompass overall plans or approaches that negotiators may utilize. Most of the identifiable tactics are designed for the competitive distributive approach to negotiation. It is helpful for mediators to be able to identify when they are in use, and in particular when they are used negatively as they are usually counter-productive to reaching a resolution. Some mediators are quite active in assisting the parties when they are utilizing tactics and strategies which, while used in an adversarial setting, may not be productive in the mediation process.
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- During the last thirty-five years, the field of mediation has evolved and matured, perhaps far more than those involved early in the movement ever envisioned. And this evolution has taken place not only within the United States, but essentially throughout the world. In most ways, this growth of mediation use has been very encouraging, constructive and valuable. Individuals continue to learn innovative and creative ways to solve problems. Many matters are resolved expeditiously. Awareness that all problem solving need not be based upon a win-lose, right-wrong paradigm has increased. But along with that progress have also come concerns and unease. Like any innovation, “growing pains” have emerged. This is particularly true of mediation use as it relates to the courts. Not surprisingly, the last several years have brought many developments in terms of how and where mediation is conducted as well as expansion of the parameters of practice. These rules, guidelines and policy matters...
- This book provides a concise, yet comprehensive overview of the issues that currently relate to, and impact mediation practice. Although space does not permit an exhaustive analysis of each of the myriad of issues raised, the reader will find useful resources through the references, cases and bibliographies at the end of each chapter. This work was written not only as a helpful guide for law students, but also to serve as a quick reference for mediation participants, including mediators, lawyers and clients.
- I thank friends and colleagues who made suggestions with regard to the content and outline of the first edition of this book. My indebtedness is also extended to all of those whose thoughtful and insightful publications have formed the foundation of the continuing knowledge and further innovation in the field of dispute resolution. A special acknowledgement to Hamline University’s Dispute Resolution Institute’s Mediation Case Law Project, which provided aid in compiling information for earlier editions. Appreciation also goes to Liz Herre for her contributions to the first edition, and to Rafael Boza and Rita Cannon for their assistance with the second edition.
- And, finally, a special expression of gratitude to my wonderful family. I am eternally thankful for your presence and unwavering support.
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- Of Court regarding Mediation, see Court-Annexed Mediation
- In Mediation, 1, 9, 49, 65–66, 94–95, 90, 100, 104, 109, 140, 150, 160–161, 166–167, 209, 216, 228, 237, 249, 277–279, 281, 283–284, 320, 339–340
- Role in ADR and Mediation Development, 31–32, 35–37
- In Mediation, see Mediated Agreement
- In Mediation, 91, 201, 212
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- Publication Date: September 25th, 2014
- ISBN: 9780314291523
- Subject: Dispute Resolution
- Series: Nutshells
- Type: Overviews
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Description:
This title provides a comprehensive, yet concise examination of the primary aspects of mediation practice. In doing so, the book considers the legal, philosophical, policy and practical issues surrounding mediation use. Matters include issues such as levels of participation in mediation, enforceability of mediated agreements, regulation of practice including ethical issues, and a survey of the specialized applications of mediation. The extent and limits of confidentiality are examined along with consideration of the Uniform Mediation Act. Each chapter also contains an extensive bibliography and listing of the leading cases in each subject area.