Preparing for Mediation with Early Settlement
A Breif Guide for Attorneys
The ability to reach a successful resolution in mediation is dependent on many factors. One of the most important factors related to mediation success is the pre-mediation conference between attorney and client. Mediation participants who are adequately prepared are more empowered and comfortable with the mediation process.
Preparing a client for mediating with Early Settlement can be somewhat different than preparing them to mediate with the private sector. Since the Early Settlement program is ruled by the Dispute Resolution Act, and the Rules and Procedures that govern it, the process and procedure of mediation may be somewhat different than mediating with “for fee” mediators.
The following guide provides suggestions for the pre-mediation conference when mediating with Early Settlement Mediation.
1. Understanding of the mediation process: Since Early Settlement follows the Facilitative Model, the mediator will assist parties in reaching their own decisions but will not evaluate the strengths and weaknesses of their case. The mediator will remain neutral while assisting both parties to reach a mutually agreeable and realistic solution.
Party’s minds can be put at ease knowing that they are not giving up any rights by attending mediation. Even when an agreement is reached in mediation it is not “binding.” Agreements can be altered or even set aside following mediation, although most generally the agreement is followed. Since this is the case, many attorneys encourage clients with limited resources to attend mediation without counsel present. With adequate preparation for mediation by the attorney, clients are often able to work effectively.
2. The mediator will have no prior case information/history: While private mediators often require Pre-Mediation Statements from attorneys, Early Settlement mediators come to the mediation with no information other than party’s names, the case number, and a list of issues to be discussed. This is done intentionally to ensure the neutrality of the mediator.
3. The necessity of confidentiality: Everyone attending mediation, including legal counsel, is bound by confidentiality. “New” information learned during mediation cannot be used in court unless that information is included on the written agreement. Because of the confidential nature of the process, the mediator will collect and destroy all notes taken during the mediation session. This includes notes taken by either the mediating parties or their attorneys (see the Consent to Mediate, and Rule 10 forms.) The only document leaving the mediation is the agreement, if one is reached.
4. Participants will take the lead role: After introductory comments are made and mediation rules covered by the mediator, each party will be asked to help set the agenda. Each participant will be asked to list any topics needing resolution. Setting the agenda will occur prior to the exploration of each issue. This can be somewhat different than mediation models where attorneys are expected to make opening statements on behalf of their clients.
5. Attorney assistance in mediation: Attorneys can assure clients that they are able to meet privately with them at any point during the mediation. The attorney will also remain with their client if caucusing becomes necessary. Participants might also find it helpful to know that opposing counsel may not address them, but is instead limited to speaking to their own client or the mediator.
Although attorneys are always welcome in mediation, most of the time attorneys do not choose to attend. When this is the case, it is helpful for the attorney to be available to their client by phone to answer questions. Because the mediator cannot give legal advice, asking questions of their attorney is sometimes necessary to move the mediation forward.
6. Participant familiarity with legal “likelihoods” or limitations of their case: Child support is an example where the court generally follows set guidelines. When clients know beforehand what is “typically” done by the court, impasse in mediation can often be prevented.
7. Participant basic understanding of negotiations: Negotiating in a good faith effort to resolve disputes means coming to mediation with a truly open mind. Since negation involves give and take in an effort to meet everyone’s underlying needs, participants should be dissuaded from taking a “this is my bottom line, take it or leave it” approach. When both parties come with some understanding of a reasonable range of the value of their case, and a willingness to develop options for mutual gain, mediation will most certainly be successful.
When personal property lists of more than ten items will be discussed, parties should provide a copy for the mediator and one for each of the additional participants. Values may be included but are not vital to the process.
8. The emotional component of mediation: In the mediation process people may need adequate time to explore issues and sometimes “vent.” Delicate or unpleasant information may surface or need to be discussed. This information can cause mental disequilibrium as individuals struggle to adjust views and positions that may have been held for some time. It can be helpful to assure participants beforehand that dealing with emotions is quite normal. The mediator is trained to recognize productive and unproductive venting and will prevent either party from verbally attacking the other in mediation.
9. Participant basic understanding of caucusing: In private mediation, much, if not most, of the mediation takes place in caucus mode. Early Settlement only uses caucusing when necessary. Most often caucusing occurs during negotiations when parties continue making unproductive comments in open session, or when nearing an impasse.
Parties should be aware that everything discussed during caucus is confidential. The mediator will gain permission prior to disclosing any information revealed in caucus to the other side. Frequently parties choose to have the mediator act as a “go between” in presenting offers to the other side following a caucus.
10. Having a positive attitude in mediation makes a difference: Mediation is a safe place to explore issues and given the non-binding nature of the process, there is literally nothing to lose by attempting mediation and potentially much to gain.
If Early Settlement can be of any further assistance in preparing for mediation, please don’t hesitate to contact the Early Settlement office.