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.
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.
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
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:
mediator may not force or impose a settlement.
mediator shall not unnecessarily prolong the process.
are to be made voluntarily by the parties themselves.
mediator shall not coerce or unfairly influence a party into a settlement.
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.
mediator shall not require a participant's further presence at a mediation
when it is clear the participant wishes to withdraw.
mediator shall suspend or terminate the mediation if the mediator believes
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.