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Mediators securing advance commitments - What are your thoughts?

Should mediators secure the advance commitments of participants before a mediation? If so, what commitments?

Please provide your thoughts/comments below.

Thank you Harold Coleman of AAA Mediation.org for providing this week's question.

Comments (3)

Michael Orfield:

Confession! I no longer do mediation. I admire the heck out of the good mediators because their job is so often made miserable by attorneys who have no concept of what it takes to find that common point for resolution. Sending litigators to mediate is often a mistake. Sending attorneys who have taken the time to know what it takes to be a mediating attorney is worth its weight in gold. So the commitment is to ALWAYS let the other side own it's position. "I appreciate that your client recalls having the green light. But please consider that it is just as likely that..." Treat the other side's position with respect and do not offend them for their position. Offer alternatives and ask for consideration of certain evidence that favors your side.
COM ATTY "My demand is $100,000."
MED "But the RESP turned down $50,000 last week, correct?"
COM ATTY "Yes, but I want them to know I am ready to go to trial if they keep up this insane position"
RESP ATTY "What! I turned down $50,000 last week. Okay, two can play that game. My offer is $1.00"
MED "You want me to take back an offer of $1?"
RESP ATTY "This is why we pay you the big bucks. You figure it out."
So the Mediator starts the day with two attorneys who haven't the slightest clue how to step out of their litigation attorney role and step into their Mediation attorney role. Indeed, its a role they have never assumed.
Thus the commitment is to be Mediation attorneys, to let the other side own its position and respect that that is where they begin the day. Even in the above scenario, the RESP ATTY can let the COM ATTY own her/his position and respond with "I appreciate that I turned down half of today's opening demand, but I understand that the COM is free to start wherever they feel justified. Let me explain why I thought even $50,000 was too much."
Commit to taking the time to step into the shoes of your adversary. Commit to doing nothing to drive the sides away from each other. Commit to taking every step with the idea in mind as to how we can next get the two sides closer.

Micalyn S. Harris:

A pre-meeting conference call can establish commitments about the process - submission of a pre-meeting mediation statement, exchange of statements or not, standards/expectations of courtesy, appropriate party representatives, and possibly a time commitment, e.g. agreement to set aside the day or the afternoon.

If it's a court-ordered mediation, the first step is to persuade the parties (and their counsels) to "turn their minds around" and seriously consider alternatives other than continuing litigation. Some lawyers regard mediation as a hurdle they must leap before getting to trial. Some regard it as an opportunity to do unstructured discovery. Some regard it as a genuinely valuable opportunity to explore alternatives other than continuing litigation. Getting the parties and counsels into a mindset for the last is a mediator's first job, and it starts with the initial pre-meeting telephone conference.

If the parties have come to mediation voluntarily, they are already committed to exploring options other than continuing litigation - although possibly not seriously or realistically. Again, a pre-meeting conference call to set standards for the process, limits on the mediation statement, whether the parties will exchange their mediation statements, whether the parties will submit separate statements of issues or a joint statement of issues, whether there are facts a party thinks it would be useful for the mediator to know but does not want revealed to the other side so to be communicated in a confidential letter, who will attend and that the party representatives will have authority to bind the party represented, and any other arrangements or limits the parties want to make.

In short, yes there are commitments to the process that one can request and usually obtain.

Gerry Doyle:

Certain advance commitments are appropriate. I request that the parties each provide me either a written statement of position, or copies of the latest correspondence between the parties which identify the issues and parties' positions sufficient for meaningful mediation. I also request that the parties mutually acknowledge that mediation is different from litigation, primarily in that a willingness to compromise is necessary. To that end, a friendly atmosphere is anticipated so that the parties can find that elusive solution which both sides know is out there but have not been able to find on their own. Finally, I require that each side have present or readily available a representative with full authority to approve a settlement.

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