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 by qpw54265

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									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)

								
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