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 Allan J. Weltman

 Family Mediator, Florida Supreme Court Certified County Mediator,  Florida Supreme Court Qualified Arbitrator

       

                               

 

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SUGGESTIONS FOR A SUCCESSFUL MEDIATION

Parties and counsel have found the mediation process most productive and useful by considering the following well in advance of a scheduled mediation:

 

1. PREPARATION IS VITAL. In most circumstances there is a direct correlation between level and quality of preparation and success in mediation. Success does not necessarily mean full and complete settlement, but it does mean at least a meaningful and productive exchange of information and a heightened awareness by parties and counsel of each other’s strengths and weaknesses. From the lawyer’s standpoint, preparation for mediation should be very similar to preparation for trial in terms of thoroughness and understanding of all sides of the dispute. From the party’s standpoint, preparation means you should know all you can about your side, as well as the opposing point of view.

Remember, however, that mediation is non-adversarial and informal. Extensive preparation should not translate into hardened, adversarial positioning or negative behavior toward opposing parties or counsel. This behavior is counterproductive and does nothing but inhibit and slow down or halt the mediation process. As in most situations, knowledge is power. Mediation is no exception.

 2. LET THE MEDIATOR KNOW in advance if there are any problems or concerns that will assist the mediator in assisting you at the mediation. This is not an improper or prohibited ex parte communication with the mediator, but is in essence a pre-mediation conference and can be confidential if you so desire.

 3. KNOW WHO WILL BE PRESENT AT THE MEDIATION. Once the mediation begins it is too late to ask if someone who should be there, will be there. If lawyers are involved, a little communication with opposing counsel can go a long way toward making the process as productive and successful as possible. If lawyers are not involved, contact the mediator if you have any concerns or questions as to who will or will not be present at the mediation.

4. UNDERSTAND THE ROLE OF THE MEDIATOR. The mediators job is to help the parties settle their differences by asking a lot of questions, listening to the answers, appropriately discussing strengths and weaknesses on both sides, and exploring and discussing the inherent risks and possible outcomes of proceeding to trial. The parties need to understand that the mediator does this with both sides, and that the mediator should be neutral and impartial throughout the process. If anyone in the mediation feels the mediator is not being neutral and impartial, or is somehow "taking sides" this should immediately be brought to the mediators attention. This concern should be addressed immediately if it arises.

5. REMEMBER THAT THE RESPONSIBILITY FOR RESOLVING THE DISPUTE LIES WITH THE PARTIES, not with counsel or the mediator. This is a rare opportunity, and certainly does not arise in the adversarial courtroom setting, and the parties should be prepared to take full advantage of being able to decide for themselves what happens with their dispute.

6. KNOW WHAT TO EXPECT OF YOUR MEDIATOR. Be familiar with the Florida Rules for Certified and Court-Appointed Mediators, specifically the Standards of Professional Conduct. The Standards, relative to mediator conduct, presently provide, among other things, the following:

     (a) The mediator may not force or impose a settlement.

     (b) The mediator shall not unnecessarily prolong the process.

     (c) Decisions are to be made voluntarily by the parties themselves.

     (d) The mediator shall not coerce or unfairly influence a party into a settlement.

     (e) The mediator shall be impartial and advise all parties of any circumstances  bearing       on possible bias, prejudice or impartiality.  The mediator shall not render a personal  or professional opinion as to how the court in which the case has been filed will  resolve the dispute.

     (g) The mediator shall not require a participant's further presence at a mediation when         it is clear the participant wishes to withdraw. 

     (h) The mediator shall suspend or terminate the mediation if the mediator believes the            participants are unwilling or unable to participate meaningfully in the process, or  that an agreement is unlikely.   

     (i)  The mediator shall cause the terms of any agreement reached to be memorialized appropriately and discuss with the participants the process for formalization and implementation of the agreement.          

The mediator shall not knowingly assist the parties in reaching an agreement which for reasons of fraud, duress, overreaching, the absence of bargaining ability, or unconscionability, would be unenforceable.

This is not intended to be an exhaustive discussion or enumeration of the Standards of Conduct (which are in the process of being revised), but simply to highlight the Standards as they relate to mediator conduct and the ethical responsibilities of the mediator.

 

 

Send mail to aweltman@divorce-bankruptcy.com  with questions or comments about this web site.
Copyright © 2001 The Divorce & Bankrutpcy Center
Last modified: 11/22/10