The term “mediation” is used in law to refer to a form of alternative dispute resolution (ADR). Mediation is a way of resolving conflicts between multiple parties, where the mediator generally helps the parties negotiate a settlement. Mediations can be held to resolve all kinds of disputes, such as legal, commercial, workplace, diplomatic, family, and community matters. FindLaw.com defines mediation as: “Any instance in which a third party helps reach an agreement in a dispute. More specifically, mediation has a structure, timetable, and dynamics that “ordinary” negotiation lacks. The process is private and can be confidential. Participation is typically voluntary. The mediator acts as a neutral third party and facilitates rather than directs the process.”
Mediators employ different techniques to begin, or improve, empathy and dialogue between disputants to reach a satisfactory agreement. The mediator’s training and skill are essential, and there are training programs, licensing, and certifications professional mediators can go through.
How Do I Choose The Best Mediator?
Attorneys typically choose mediators based on their success rate and reputation. Some steps you and your attorney can take to ensure you are choosing the best person for the job:
- Look through their references
- See if your prospective mediator believes that they should “level the playing field” through sharing information that one party may prefer to be kept confidential, like case law or alternative case theories that may benefit one party.
- Does the mediator believe they should share their opinion?
- Do they know what happens after an opinion has been shared?
- Does the mediator have training in “transformative mediation,” a process that tries to bolster relationships of those involved, or “facilitative mediation,” where the mediator acts as a catalyst to a negotiation process?
It is vital for your mediator to be able to efficiently establish credibility with different parties, especially the counsel.
Confidentiality With A Mediator
JAMS Arbitrator and Mediator Jerry P. Roscoe notes that you should always ask: Does your mediator promise to keep everything confidential? If they do, it should sound alarm bells; usually only what is created during mediation is protected. Parties cannot be quoted on what they expressed in mediation in a subsequent legal forum, and notes are given the same treatment. However, mediators are unable to protect parties from information being used that is learned during the mediation process. Just because they are used in mediation, documents do not become confidential.
Some questions you should ask yourself and your attorney when hiring a mediator include:
- What will they do if their client, client’s attorney, or the other side subpoenaed them?
- Will the mediator breach confidentiality if they feel an ethical or moral obligation to do so?
- Do you know what these thresholds are?
- Will the mediator give you all the ethical codes they subscribe to?
- What will they do if their ethical obligations as an attorney and their ethical code are at odds?
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