SUCCESSFUL MEDIATION STRATEGIES

David A. Fitzsimons
Martson Law Offices A Professional Corporation Ten East High Street Carlisle, Pennsylvania 17013 Telephone: (717) 243-3341 Facsimile: (717) 243-1850 dfitzsimons@martsonlaw.com

Julia Rabich
Law Clerk, Martson Law Offices 3L, The Dickinson School of Law yxr124@dsl.psu.edu

ABA MODEL STANDARDS OF CONDUCT FOR MEDIATORS

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. Mediation is a process in which an impartial third party facilitates communication and negotiation and promotes voluntary decision making by the parties to the dispute. Mediation serves various purposes, including providing the opportunity for parties to define and clarify issues, understand different perspectives, identify interests, explore and assess possible solutions, and reach mutually satisfactory agreements, when desired.

ABA Section of Dispute Resolution Task Force on Improving Mediation Quality

Background

Members: 17 Diverse geographic areas Lawyers and non-lawyers

Involved in different types of mediation

ABA Section of Dispute Resolution Task Force on Improving Mediation Quality Final Report
Focused only on private practice civil cases
(since mediation norms vary widely by type of mediation)

Commercial, tort, employment, and construction cases

NOT family law or community disputes

ABA Section of Dispute Resolution Task Force on Improving Mediation Quality, Task Force on Improving Mediation Quality Final Report (2008), available at http://www.americanbar.org/content/dam/aba/migrated/ dispute/documents/FinalTaskForceMediation.authcheckdam.pdf.

ABA Section of Dispute Resolution Task Force on Improving Mediation Quality Final Report

General Findings

Not a one-size fits all best practice regime Recommends mediators and participants tailor procedures to fit each case Participants appreciate:

Skill, knowledge, but ALSO

Good intuition about parties emotional needs

ABA Section of Dispute Resolution Task Force on Improving Mediation Quality Final Report

Four Focus Points

Preparation for mediation Case-by-case customization Careful consideration about providing analytical assistance Mediators persistence and patience

Preparation for Mediation

Mediation begins during preparation phase

Need for mediators to be there from the beginning

Preparation for Mediation

Suggestions

Essential for mediators to review all documents

Mediators and lawyers should discuss prior to session:

Procedure
Substance Real issues and potential stumbling blocks

Confirm participation Settlement authority

Preparation for Mediation

Preparation enables:

Parties to understand process, issues, and interests Mediators to understand parties goals All to settle case and minimize time, cost and risks

Case-by-Case Customization

Participants desire tailored process

Parties preferences differ

Coordinating scheduling of mediation to suit parties needs

Determine the need for opening statements

Careful Consideration About Providing Analytical Assistance

Potential Assistance

Ask pointed questions Suggest options

Provide analysis of case

Careful Consideration About Providing Analytical Assistance

Many Uncomfortable With:

Mediators giving opinions/recommendations about specific settlement options

Careful Consideration About Providing Analytical Assistance

Judgment Call:

Predictions about likely court results

Substantial amount of participants found it helpful Only one-third of mediators agree

Careful Consideration About Providing Analytical Assistance

Factors Affecting Assistance:

Explicit request for assistance Extent of mediators knowledge and expertise Degree of confidence mediator expresses in assessment Pressure mediator exerts on people to accept assessment Whether assessment is given in session or caucus How early or late in process the assessment is given Whether assessment is given before or after impasse Nature of issues (legal, financial, emotional) Competency of counsel Impartiality of mediator

Mediators Persistence and Patience

Participants Expressed Dissatisfaction With:

Participants Expressed Dissatisfaction With:

Mediators giving up easily if negotiations become difficult Point at which participants need mediators most Mediators should work the most at this point

Mediators failing to contact attorneys to inquire about further assistance after session ends without agreement

Never stop talking if there is any hope.

Additional Advice
Continued education
Skills Legal issues New developments

Routinely debriefing
Successes Difficult situations Approaches to take in future mediations

Confidential feedback forms

Observation of mediation by others to provide feedback

Peer consultation groups