"MEDIATION What is mediation • Mediation is often referred to as being assisted negotiation • It is a voluntary process in which parties attempt to resolve a dispute with the help of a ne"
MEDIATION What is mediation? • Mediation is often referred to as being assisted negotiation. • It is a voluntary process in which parties attempt to resolve a dispute with the help of a neutral 3rd party called a mediator. • The mediator is not a judge and does not decide who is right. • Mediators use many of the skills that negotiators use. What types of disputes can be mediated? • Civil litigation • Family/divorce • Consumer • Workplace/employment • Neighborhood • Landlord/ tenant • Business contracts • Disability issues • School • Church When is mediation NOT appropriate? • An incident had just occurred and people are too upset. • One party is using mediation to escalate the dispute • One party seems incapable of listening • One party might be better off using the courts • The issue deserves public attention. TYPES OF MEDIATION • Facilitative • Evaluative • Transformational WHY MEDIATE? • Economical Decisions • Rapid Settlements • Mutually Satisfactory Outcomes • High Rate of Compliance • Comprehensive and Customized Agreements • Greater Degree of Control and Predictability • Personal Empowerment • Preservation of an Ongoing Relationship or Termination of a Relationship in a More Amicable Way • Workable and Implementable Decisions • Agreements that are Better than Simple Compromises or Win/Lose Outcomes Decisions that Hold Up Over Time STEPS IN THE MEDIATION PROCESS • Mediator opening statement • Party opening statements • Exchange/negotiation • Caucuses • Closure/agreement MEDIATOR OPENING • Welcome and introduction • Purpose of mediation; the mediator’s role • Logistics: timeframe, breaks, restrooms • Confidentiality explained • Agenda • Caucusing explained • Ground rules • Questions • Commitment to proceed THE MEDIATOR’S ROLE • Convener • Educator • Communication Facilitator • Translator • Questioner and Clarifier • Process Advisor • Angel of Realities • Catalyst • Responsible Detail Person HOW TO OVERCOME IMPASSE by Department of Veterans Affairs • http://www.mediate.com/articles/va2. cfm# MODEL STANDARDS OF CONDUCT FOR MEDIATORS • Self-Determination • Impartiality • Conflicts of Interest • Competence • Confidentiality • Quality of Process • Advertising and Solicitation • Fees • Obligation to the Mediation Process Uniform Mediation Act of 2001 (Amended in 2003). • Adopted by: – District of Columbia – Illinois – Iowa – Nebraska – New Jersey – Ohio – South Dakota – Utah – Vermont – Washington – Idaho • Proposed in 2008 by – New York What legal protections apply to insure confidentiality in mediation? • Contractual agreements • Statutory protection – Federal Protections • Federal Rules of Evidence §408 protects against admissibility of offers and compromises or conduct and statements in negotiations • Federal Rules of Civil Procedure §68 prohibits later admissibility of offers in negotiations conducted during litigation. – State Protections Vary Ga. Alternate Disp. Resol. Rule 7 • Any statement made during a court- annexed or court-referred mediation or case evaluation or early neutral evaluation conference or as part of intake by program staff in preparation for a mediation, case evaluation or early neutral evaluation is confidential, – not subject to disclosure, – may not be disclosed by the neutral or program staff, and – may not be used as evidence in any subsequent administrative or judicial proceeding. Ga. Alternate Disp. Resol. Rule 7 • Any document or other evidence is not subject to discovery. • A written and executed agreement or memorandum of agreement resulting from a court-annexed or court- referred ADR process is discoverable unless the parties agree otherwise in writing. Ga. Alternate Disp. Resol. Rule 7 • Neither the neutral nor any observer in a court-annexed or court-referred ADR process may be subpoenaed or otherwise required to testify concerning a mediation in any subsequent administrative or judicial proceeding. • A neutral's notes or records are not subject to discovery. Confidentiality does not extend to • a situation in which – a) there are threats of imminent violence to self or others; or – b) the mediator believes that a child is abused or that the safety of any party or third person is in danger. • documents or communications relevant to legal claims or disciplinary complaints brought against a neutral or an ADR program and arising out of an ADR process. – Documents or communications relevant to such claims or complaints may be revealed only to the extent necessary to protect the neutral or ADR program. • Parties should be informed of limitations on confidentiality at the beginning of the conference. (Ga. Alternate Disp. Resol. Rule 7)