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Tips for negotiating ethical quagmires in mediation

By: DOLAN MEDIA NEWSWIRES//November 23, 2015//

Tips for negotiating ethical quagmires in mediation

By: DOLAN MEDIA NEWSWIRES//November 23, 2015//

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By Deborah Elkins
Dolan Media Newswires

adr3Court-referred mediation is happening every day throughout the country, in sessions conducted by lawyers, as well as non-lawyers who have been certified as mediators.

With thousands of cases being referred annually by the courts, it’s important that lawyers are aware of the many ways they can be tripped up when working through mediation procedures.

Here are some tips that can help you avoid the pitfalls:

Spell out the mediator’s role. Mediators may share information, including statutes, relevant to the dispute, but the information shared must be accurate and be delivered in a way that does not suggest mediator bias or interfere with the parties’ right to decide how to resolve their dispute, according to the U.S. Supreme Court’s ethical standards for certified mediators. Mixing the role of mediator with another professional role causes problems and a mediator should take care early on to distinguish the mediator’s role and discuss the value of information from other professionals.

Get over yourself. Mediators do well to remember they don’t have to like the end product of the mediation session – the parties’ agreement. They only need to “reality test” agreements to help parties understand how the agreement may work in practice. As with information from professionals, it’s best to cover this point when introducing the mediation process.

“Man up” about mistakes. It’s important for mediators to take responsibility for how they conduct a mediation, to be honest and transparent and to own up to mistakes. “Mediators who conduct a poor quality process, practice poor skills” and disrespect parties, “are unprofessional, or act unethically and cast a pall on mediation,” DRS warned.

Mediate without favor. Covering the use of professional information and “reality testing” early in the introductory session will help the parties to perceive the mediator as being an impartial facilitator.

It’s not for everybody. Just because a court has referred a case to a mediator doesn’t mean the judge has deemed the case as suitable for mediation. According to the ethics standards for mediators, it’s the mediator’s responsibility to determine if each party is willing and able to participate effectively in mediation.

Clarify confidentiality. It’s important for a mediator to identify what information will not be confidential – namely, information related to threats to inflict bodily harm, plans to commit a crime or conceal an ongoing crime, or ethics complaints against a neutral. Parties also may sign a written waiver of confidentiality as to certain matters. But unless the parties agree to a waiver, mediators may not share the content of the mediation or parties’ conduct or demeanor without outside parties such as family members, significant others, bosses or commanding officers.


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