Page 15 - Alternative Dispute Resolution

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Alternative Dispute Resolution | MONDAY, MARCH 28, 2016 | S15

Mediation Road
mediation. It would be helpful to advise the exchanges. Asking the mediator to resolve a a sense of where the mediation might end up.

mediator that this has occurred, having full non-adjudicated issue is an impediment to a During these caucuses, it is most helpful for
faith that the information will be kept in con- fruitful exchange. Mediation is about resolu- the parties to be forthright with the mediator
« Continued from page S8
idence by the mediator and not divulged to tion—not adjudication.
in addressing not only the strengths but also
for a trial. This means preparing the client and the other side. The information kept in con- It has often been the case that lawyers with the weakness of the case. Remember that
knowing what the client should expect from idence may nevertheless help the mediator a past history of acrimonious engagements the mediator is not an advocate for either
a mediation. It also means communicating when in private caucuses with the opposing ind themselves across the table from each party and is not there to force anyone to a
with the other side.
side. Honesty is always the best policy with other during a mediation. This may lead to a particular position. The mediator is a neutral
Preparation also requires conirming why the mediator. While demands and offers that remark or veiled threat of what will happen and has no dog in the ight before him or her.
mediation has been sought. For example, if have been disclosed are important, parties during a trial, which has then led to the com- It is not helpful in moving to resolve the case

it is to attempt to settle a personal injury should be assured that everything discussed plete breakdown of negotiations. If the lawyer to have one side or the other suggest that the
matter, have demands been communicated with the mediator will remain private and con- is not able to delate his or her ego, to cease mediator should get the other side to agree
or offers made? Have the positions of the idential. This will also reinforce everyone’s with threats or to engage the adversary in a to a certain position.
parties been made known before coming expectations that the mediator will make “ight to the death,” then that lawyer should The mediator may urge the parties to set-
to the table? Why did one side ask for the every attempt to bridge the gap towards a not appear at the mediation but should send tle the matter, pointing out the weaknesses
mediation? Often one of the parties will settlement.
someone else instead. Everyone has an ego, and the strengths of their respective posi-
admit to coming to mediation because the including the mediator, but that sense of self- tions. This may require the mediator to act as
other side asked for it. Don’t expect a posi- importance needs to be held in check or the a “devil’s advocate” by expressing opinions
The Ofer and the Ego
tive outcome if this path is taken. The right mediation will be in danger of collapse.
on the positions taken. The parties may think
amount of preparation will determine, before In every case, there is a person who has that the mediator is siding with his or her
the parties come to the mediation, whether the authority to make offers and a person who Bringing Parties Together
opponent. Rest assured, however, that this
there is a possibility of resolving the matter. has the authority to accept them. Often it is is not the case. The neutral has been chosen
Many times parties never convey demands the injured client who has been fully prepared The mediation process requires that the by the parties as someone who is adept at
or offers but still come to the table, or there and advised of the process that is in the posi- parties understand that communication bringing both sides together. This is all part
is disagreement over them. This often leads tion to settle the matter. That client should involves not only the exchange of ideas but of the mediation process. It is the media-
to confusion or ill will and a irming of each be present during the mediation or, at the concentrated listening as well. The parties tor’s job to point out laws in each case, and
side’s position with the expectation that the very least, be reachable by telephone so that must hear each other, consider each other’s to have both parties consider factors that

mediator will sort through the morass and offers approaching a fair settlement can be
arguments and, above all, listen to the media- may not have been adequately understood
convince one side or the other to either put tor. It is axiomatic that a good mediator must beforehand. This is what the mediator is
up more money or take less and be happy be adept at listening to each side and be able supposed to do. During these caucuses, it
with the process.
to glean what both sides are trying to “say,” is imperative that each side listen to what is
Thus, if the mediation is to be successful, Have the positions of the parties based on their verbal and non-verbal com- being said, reconsider positions taken and
the parties must communicate beforehand. been made known before com- munications. Mediators develop a sense of be assured that the mediator is acting for
Clear parameters must be set. Demands and where the parties want to be at the conclusion the ultimate goal of resolution. Communica-
offers should be made and any problems ing to the table? Why did one of the mediation and attempt to move them tion is the key!
openly discussed. The parties should make to that position.
side ask for the mediation? Of-
sure that all information sought by each side ten one of the parties will admit But the parties must also listen and consid- The Mediator and the Client
has been exchanged. If an injured party is still er what the other side has to say and what the
under medical treatment, for example, it is to coming to mediation because mediator is communicating to them. There There are times during the mediation
most helpful to provide up-to-date medical may come a time during the mediation that when one party may feel it is beneicial for
information and reports before the mediation. the other side asked for it. Don’t a party reaches the ceiling or loor where no the mediator to speak with the client. While
All insurance information should be disclosed expect a positive outcome if further compromise in position can be made. most are willing to do this, the mediator is
before the mediation. Preparation, prepara- But until that position is reached, communica- neutral and will not present arguments favor-
tion, preparation: Just like it is the backbone this path is taken.
tion is still the key, listening is still paramount ing or disfavoring either side. The mediator

of a successful trial, it is also the backbone and patience is still the rule.
can, and will, present to the client what has
of a successful mediation.
communicated by the attorney. By the same Communication at the actual mediation occurred during the process and will perhaps
token, the person with ultimate authority to begins with the joint session conducted by convey what should be considered by the
Submissions
make a inal offer should also be present or the mediator. It is here, that each side will hear client in making a decision to settle. How-
easily accessible during the mediation. Too the general outline of the opponent’s case ever, the mediator cannot, and should not,
Often, voluminous briefs are presented often, the person with the authority to settle and have the opportunity to speak directly to bolster the arguments of counsel or offer an
to the mediator, as if the sheer volume is a is supposedly just a telephone call away but the other side. If the injured client is present, opinion about whether or not to settle the
sign of the validity of the case. Rather than cannot be reached during the negotiations. a decision will have to be made whether or case. In presenting the client with issues to
volume, only the most telling and pertinent This results in frustration and distrust and not that client should be present at the joint be considered, the mediator will remind the

papers, reports, testimony and legal positions should be avoided to prevent the risk of session. However, it is most helpful for the client that he or she is well represented, that
should be submitted. All the depositions in mediation failure.
adjuster or person holding the purse strings they should trust their lawyer and, in the
the case are not needed. It is wiser and more In many large cases, the parties will insist to be present at the joint session so that the inal analysis, should listen to their counsel
economical (monetarily and mentally) to pres- that the plaintiff in an injury case or the prin- general facts as presented by the other side who, unlike the mediator, will offer opinions
ent only the salient points of a deposition cipal adjuster be present during the negotia- can be heard. Once again, there is no need of whether or not to settle the case. In this
or hospital records, the most telling injuries tions. If this is the case, this requirement must to exaggerate or act in a threatening manner way, the mediator will serve as a true neutral
suffered and the reports that summarize the be communicated to the other side in advance during the joint session. The mediator will without pressuring the client into making a
injuries. It must be remembered that the sub- of the mediation or else the risk exists that already be familiar with each side’s position, decision.
missions need not be exchanged with the one of the parties will refuse to mediate and so the session is really for the beneit of the The Road to Mediation can be a bumpy

other side, and can be sent in conidence. will simply walk away from the table. Once parties themselves.
one, but if all parties are willing to com-
It should come as no surprise then that the again, communication between the parties Usually after the joint session, the media- municate and negotiate in good faith, The
mediator has been presented with, and has and with the mediator is essential.
tor will caucus with each party separately to Road Less Traveled could be the most pro-
read, the submissions of each side without Egos and threats have no part in the media- gauge the true positions of each side and get
ductive path.
any expectation that those submissions have tion process. The lawyers representing the
been sent to the other side.
parties are usually all successful litigators
However, in the spirit of cooperation and toughened by, and use to, the arena of a trial.
with a view to resolving the case, it may be Ego abounds. The adversarial process of liti-

wiser to exchange the submissions so as to gation leads to punch and counterpunch with
prevent distrust of one side for the other. lare-ups not uncommon. It should go without
This does not mean that certain information saying that mediation is not a trial and that
cannot be withheld. For example, there may egos should be left at the door. The point of
be an issue that one side wishes to hold for the process is to arrive at a settlement, not
trial and not divulge to the other side at the
to threaten, cajole or engage in acrimonious