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June 2017

PREPARING FOR MEDIATION

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If you are a person turning to mediation to resolve a conflict, how can you best prepare so that a mutually acceptable resolution is as likely as possible? If you are an attorney, how can you provide the most valuable assistance to your client when a mediation is going to take place?

For the person going into mediation (commonly referred to as a party), with or without an attorney, it is important to understand what mediation is and is not. For the attorney, the best way to increase your effectiveness is to shift your thinking and preparation from a litigation model to mediation.

Both the party(ies) and the attorney should be aware that mediation is not arbitration, litigation, discovery, nor a deposition. Mediation is a conversation, a dialog facilitated by a neutral third party in a structure of organized problem solving.

The fact that this process is a conversation allows for freedom in exploring a wide range of possible solutions. The mediator will not offer legal or financial advice, will not say who might be right or wrong. On occasion, depending on the matter at hand, the mediator may – with the clear permission of the parties – offer a solution for consideration, but the goal is to have the parties design their own resolution, accept it and own it. In situations where one side may be pro se (landlord-tenant is a common example), or in certain domestic disputes such as post-decree parenting agreements, the mediator may offer suggestions for consideration based on the mediator’s experience with similar situations: “Here’s a way of handling that situation that has worked for other families.” In business, financial or employment disputes – contract fulfillment, debt settlement, investments, discipline, termination, Equal Employment Opportunity – it would be common for the mediator to make no suggestions, but to ask clarifying questions of both sides and to offer summaries for both sides to consider so that pro se parties, or attorneys and their clients can begin to formulate resolutions.

As a mediator, I’ve had many situations where attorneys brought briefcases and boxes full of documents to the mediation, only to learn that the vast majority of that weight could well have been left in the office. The reason is that the mediation table is not a court of law, evidence is not submitted. For example, if a maintenance contract was (in the opinion of the recipient) not properly fulfilled, a copy of the contract would be useful. Copies of the emails that went back and forth over several months are not useful. Why? Because the point of a mediation is not to prove something to a third party such as a judge, but rather to agree on what might be a solution. Litigation is about the past; who is at fault? Mediation is about the future; what is a mutually acceptable solution going forward?

What happens in a typical mediation? The mediator starts by talking about the process, what it is and how it will proceed. Points of emphasis, as mentioned above, are that this is not a legal process and that the goal is to find an agreement that all parties can accept. An Agreement To Mediate is signed, which refers to the confidentiality of the process and an agreement on who pays for the mediation service. If the parties are paying it is usual for the split to be equal – 50/50 or 33/33/33 – but there is no rule covering that, and on occasion one party pays the full cost.

Before beginning, an explanation of caucus is provided. A caucus is an opportunity for parties to speak privately. This may be attorney and client in a separate room for some minutes, or it may (if desired by the parties) include the mediator. In the latter case the mediator can act as a devil’s advocate, a person providing a reality check. Note: Some mediators separate the parties soon after the introduction and shuttle between rooms. My style, also used my many mediators, is to have the parties stay at the table as long as that is effective and share their viewpoints, their concerns, their potential solutions.

So what should a party, or a client and attorney, have as a mindset going into a mediation?

First, remember that the purpose of the time together is to, if possible, find a resolution that will close the matter then and there. This is critical in preparation and in pre-mediation conversations with an attorney, union steward, or friend who is accompanying the party. Mediation is voluntary, and thus there is not a winner and a loser, because no one will voluntarily agree to lose. So what does a mediated settlement sound like? People say “I can accept that. It isn’t everything I wanted, but it is resolved and I can get on with my life, with running my business, with enjoying my family and friends.” By choosing mediation over litigation people save time, money, energy, stomach acid.

Second, as described above, bring what documents you want to show the other parties to make sure there is a mutual understanding. Remember that the parties are thoroughly familiar with the case; only documents which can clarify a point of misunderstanding are of value.

I’ve done numerous mediations where the parties started off so angry they were unable to look at each other, only to stand three hours later and shake hands. By understanding how to approach mediation, and what to expect, you increase your chances of also ending with a handshake.

 

Edward M. Krauss

Dispute Resolution, Inc.

614 619 0017

mailto:edmkmediator@gmail.com

Credentialing Conference Call

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After members posed questions about OMA’s Mediator Credentialing Process at the 2017 Annual Conference, we held a phone conference open to all members on June 2nd.  We had a thoughtful discussion of the process that included a number of proposed changes.  A summary of some of the key points from this phone conference are detailed below:

 

June 2nd Phone Conference

One member raised the issue of ACR’s Model Standards for Mediator Certification Programs.
For example, Standard 17 recommends no educational requirement (because education levels have not been empirically correlated to mediator skill levels).
Proposal:  Remove Education requirements from the Proposal

Also, ACR’s Model Standards recommend a performance-based component.  The counter-argument was raised that performance-based assessments of individual mediators, by way of observation and evaluation of actual mediation sessions, is burdensome to manage and increases subjectivity.  We should not promote one style of mediation above others and should limit the effect of personal preferences in the credentialing process.

A criticism was raised that the credentialing proposal is not entirely objective.  The example was raised about the last two questions on the open-book test (concerning issues and interests rather than the Model Standards of Mediator Conduct).  A counter-argument was raised that the proposal strives for objectivity, and that the goal of objectivity (strict standards) is balanced with flexibility (which allows for some degree of subjectivity). The drafters admitted that the issues and interests questions could be better written.
Though the issues and interests questions were a source of criticism, critics supported some kind of test for mediators to demonstrate their ability to identify interests, frame issues, and ask questions.  It was then suggested that this test could fulfill the ACR Model’s requirement for a performance-based component.  It would be separate from the open-book test on the Model Standards of Conduct for Mediators (which only motivates applicants to read and digest the Model Standards).
Proposal:  Have a separate “issues and interests” test as a replacement for performance-based component.

Another member raised the issue of ambiguity, specifically about the amount of professional contribution Advanced Mediation Practitioners would be required to complete under Section VI.(E).  The drafters clarified that the required number of completed activities is “one” (i.e., Advanced Practitioners would be required to write one article/blog post, conduct one training, mentor one other mediator, volunteer at one ADR activity, or speak publicly about mediation at one event).

One member in a court-connected mediation program expressed the opinions of the mediators in that program, who asked, “Why should we have to do this?”  The drafters clarified that this is a voluntary credentialing program, not designed for mediators who already have a stable source of income and cases.  The intended beneficiaries are private practice mediators who compete for cases with mediators who have inadequate training in mediation.

The issue of licensure was raised by one member, asking why OMA would do this if the government could license mediation.  Another member responded that the issue of licensure was considered by higher ups in the government, but these higher ups ended up saying, “Where is the damage of bad mediation? We will not license if there is no damage.”  Government licensure of mediation does not appear to be imminent.

Some members were fearful that this process would drive members away.  OMA leadership indicated that it would work on the proposal until it had broader support from the membership.

Some members indicated that OMA is not in the position to sustainably execute this proposal.  Others thought it could be accomplished with little downside.  Others saw the potential benefit to the mediation profession but did not think that the logistics of the current proposal were fleshed out enough.  Eventually, everyone seemed to agree that we would be more comfortable if we knew more about the costs and logistics of this proposal.
Proposal:  The Credentialing Committee and OMA Board will look into the specific costs of insurance and hiring people to review the applications.  We can also put an example application together, see how difficult that process is, and see how long it takes a qualified person working for $20/hour to review the application.

 

Conclusion:

Many OMA members remain mistrustful of the intentions of this Mediator Credentialing Proposal.  We reiterate that this is a voluntary process it is not mean to exclude anyone from practicing mediation.  While court employees and established mediators may decide to not participate in credentialing, many of our independent, private practice mediators may benefit from this process.  Rather than excluding anyone from practicing mediation, this proposal is intended to better inform the market so that people seeking mediation services can more easily differentiate between trained and untrained mediators.

Also, legitimate concerns were raised about the uncertain costs and income of this project.  Supporters believe that applications could be reviewed at a cost that is significantly below the $100-$150 application fee.  However, many members wanted more concrete numbers.  The Credentialing Committee will therefore take steps to gauge the amount of effort that it takes to fill out the credentialing application, the amount of time that it takes a paid intern or private practice mediator to review applications, the cost of insurance, and the number of expected applicants.

In the meantime, we invite further comments about the credentialing proposal.  We will gather and respond to common concerns in an upcoming blog post.  Stay posted.