Alternative Dispute Resolution: Mediation

Alternative Dispute Resolution: Mediation

Mediation is consensual process, where third party helps disputants to negotiate solution to problem; mediator has not authority to make binding decisions for disputants; facilitates resolution by providing process for disputants to craft solution

·  Mediator facilitator only; not function to make decision for parties; duty is to assist parties to examine mutual interests, promote lasting relationship; disputants retain ultimate control for making decisions

·  Mediation flexible process, subject to few essential rules:

o  Neutrality, impartiality, objectivity of mediator

o  Litigants craft solution; mediator has no authority to impose settlement; only facilitates process

o  Mediation is consensual; only binding outcome is when parties agree to settlement; parties allowed to walk away (court annexed mediation w/ penalty where settlement not reach challenge to consensual nature)

o  Object to maximize interests of all parties

o  Confidentiality of process

o  Empowerment of parties; parties put forward solutions

o  Maintenance of relationship (mediation divorces people from problem, contained emotionality of conflict)

o  Flexibility in solutions (win/ win situation)

·  Benefits of mediation over litigation:

o  Faster, cheaper, more satisfying than litigations

o  Process private, confidential, consensual, non-adversarial (better for businesses who wish to protect trade secrets)

o  Employs cooperative, problem solving; parties better take ownership of solution, more likely to last if made to be apart of process; parties take responsibility for crafting creative solutions

o  Containment of escalation; litigation adversarial, competitive, confrontational approach; mediation involves problem solving, allows feelings to be expressed in controlled environment; lessen antagonism

·  Mediator: wins trust, facilitates communication, focus parties on problem, overcome emotional blockages, probes interests, suggests new avenues to explore, assess realistic chance of settlement

o  Mediator does not negotiate w/ parties but helps parties to negotiate w/ each other

·  Mediation agreement: set up protocol for mediation; joint commitment to settle dispute; pledge to act in good faith; “w/o prejudice clause provides that comments in mediation not used in future proceedings; mediator may not be called as witness, nor notes subpoenaed; mediator fees; right of parties to w/draw at anytime

·  Recommended that parties discuss issue of full powers; whether parties have authority to conclude agreement

Mediation process

1.  First, intro (setting table); confirm names of parties, how to address, provide info about mediation, discuss role of mediator not to impose solution but to facilitate process so both sides craft solution, impartial, neutral, no power to impose outcome

o  Import to set out ground rules: only one person speaks at each time; must follow rules; use civil language, no verbal attacks; parties may leave mediation at any time; usually mediator gets positive respond from disputants that they accept rule

2.  Second, parties explain conflict as each see it

o  After each, mediator summaries; paraphrases; ask question, clarify nature to ensure each side understands the other

3.  Mediator then identifies issues, interests in dispute

4.  Both sides generate options that satisfy interests of both parties (brainstorming)

o  This stage is critical; parties must feel comfortable; encouraged to generate solutions

o  Mediator ensures that parties focus on underlying interests, not positions

5.  Finally, if successful there is agreement; often written, specific, clear that details each sides commitment

·  Mediator has tools at disposal: take breaks; emphasize areas of agreement; use humor; adjourn to another day; encourage parties; change focus or topic of mediation; use silence; remind parties of BATNA; validates parties interests; avoid generalizations; point to similarities; use caucus

·  Caucus: deliberate pause in mediation at instance of mediator where he/she meets privately w/ one side or combination of parties; provides opportunity to engage in separate problem solving; gather additional information

o  Note: mediator must balance advantages w/ charge of potential bias

Mediation versus litigation: advantages

·  Consensual nature of process

·  Personal involvement of parties, feeling of power, ownership of process, parties craft own solution

·  Saves time, cost

·  Less emotional stress; cathartic effect (in litigation parties deal w/ law, do not address underlying issues)

·  Creates less intimidating setting; less formal, rules oriented; disputants may craft their own rules

·  Risk free involvement; disputants may walk away at any time

·  Confidential nature of process (attractive to business persons who wish to protect trade secrets; trials public)

·  Advance win/win approach

·  Freedom to choose mediator who is expert in particular area (judge random, may not be knowledgeable in specific area of law)

·  Even if not solution reached, mediation may facilitate clarifying issues, assist in later resolution

Disadvantages

·  Mediation lacks adequate safeguards for legal rights of disputants; concern in family mediation where persons have legal rights which may be mediated away (Brown and Marriott – people negotiate in “shadow of the law,” may walk away to enforce legal rights in court), yet still no consensus about how to handle rights in mediation

·  Lacks procedural safeguards

·  Failed mediation process adds to time, cost

·  Consensual nature make agreement vulnerable

·  It detracts from case law jurisprudence, which underpins common law

·  Mediation not suitable for certain types of conflicts: (1) serious crimes; (2) constitutional infringement; (3) where party wishes to create precedent; (4) where dispute generate acrimony (note: mediation is not viable solution in all cases)

Brown and Marriot, ADR Principles and Practice

·  Mediation different depending on fields of activity

o  Commercial, civil disputes: involve facts, legal, technical; businesslike approach; mediator may be general or need technical, specialized knowledge

o  Family disputes, divorce, separation, child custody: usually highly emotionally charged (separate people from problem important skill) – cathartic effect, allows emotional venting

o  Employment, labor disputes

o  Victim/ offender mediation, reparation: arrange reparation, allow healing for victim; offenders accepts responsibility

§  May not resemble mediation; not agreement to work out, participant not on equal footing (one victim, other offender); usually offender present as result of court order (not voluntary, consensual)

·  Approaches to mediation: (1) facilitative approach; (2) evaluative approach; (3) settlement seeking approach; (4) therapeutic

·  Differences in culture, practice: depending on type of mediation, mediator my adjust; i.e. full, frank disclosure usual in UK, afford opportunity to seek independent legal advice before agreement; in US, no; in family mediator where co-parenting issues or employment dispute where mediator know parties have to cooperate in future, maintaining relationships is key; where not future relationship mediator may simply assist parties to reach bargain quickly

·  Court annexed mediation: mandatory, cost cutting measure (Barbados, before divorce granted most attempt reconciliation); still retains consensual nature b/c party may walk away from settlement

·  Mediation Training Course Handbook of Center for Excellence in ADR list cornerstone principles for mediators: confidentiality; that parties allowed to own problem, solution; be neutral, resist imposing solution; be impartial, give equal value to everyone; avoid stereotyping; check own assumptions; show respect; develop, demonstrate understanding; be open, honest; be flexible

·  Rights based mediation (evaluative mediation): mediator provides independent assessment of likely outcome of case if no settlement, based on legal, equitable rights of parties; left to parties to choose to accept, reject, or modify

o  Note: necessary for mediator here to have knowledge of substantive area of law, nature of dispute

o  Mediator allowed to use personality, expertise to convince one party who may have unrealistic assessment of outcome of case; also called muscle mediation

o  Evaluation, assessment not binding, but may influence party to reassess respective positions

·  Interest based mediation (facilitative mediation): focuses on underlying interest, goals, needs of parties, rather than perceived outcomes of litigation; mediator simply facilitates discussion, no evaluation of issues

o  Mediator attempts to determine interests behind positions adopted by parties; encourages them to generate options that satisfy interest; helps them to choose solution

o  Interest based mediator controls process; process expert, not necessary to have knowledge in substantive area of law

·  Therapeutic v settlement geared mediation:

o  Settlement approach focuses on facilitating communication, negotiation, reaching settlement; settlement seen as objective, bargaining seen as process; settlement approach concentrates on trade-offs to resolve impasse; mediator allows emotions, but then quickly refocuses attention on reaching solution; tends to be quicker

o  Therapeutic approach focuses on healing, cathartic, transformative effect; favors problem solving over competitive negotiation; more responsive to emotional expression, emotionalism welcomed, seen as inherent part of process; examine interests rather than rights; more comfortable w/ uncertainty; slower pace; well suited for interpersonal issue, not so for business, commercial mediation or court annexed mediation where speedy resolution is preferred

·  Multi-party mediation: (1) requires more planning; (2) written drafts to mediator to facilitate communication helpful; (3) co-mediation; (4) organization aids such as time limits

·  Sec 8 Family Law Act, Barbados: provides where application for dissolution of marriage disclose parties marries for less than 2 yrs preceding date of filing application, court shall not hear proceedings unless court satisfied that (a) parties have considered reconciliation w/ assistance of marriage counselor, approve marriage counseling organization, or some suitable person or organization nominated by registrar or other appropriate officer (pre-condition for litigation)

Mediation and Domestic Violence: mediator is responsible for providing safe, secure environment; addressing issues of power imbalances, ensuring fairness; includes preventing manipulative, threatening, intimidating behavior

·  Mediation cannot take place if one person is conducting himself/ herself in violent or abusive way, that process cannot be carried out fairly, effectively; must ensure parties participate willingly, w/o fear of harm

·  View that abuser, victim can never mediate on equal footing; abuser may seek to avoid accountability, hard to ensure compliance

·  Mediators must be aware of issues of power imbalances, intimidation; also different types of abuse (direct physical, psychological, sexual, emotional, economic abuse); mediator must have screening process to identify abuse

·  May raise issue of potential abuse in preliminary meeting (raises questions of confidentiality, bias) – look for signs, where one dominant, other submissive, etc; readiness for one party to make concessions, may conduct separate mediation

·  Abuse may be teased out through questions (i.e. how does one handle anger, how is home life), is one party afraid of other

·  Possible strategies:

o  Severity of abuse, circumstances (i.e. if children): difference b/w minor/ one-off incident in moment of anger, mutual provocation v pattern of serious, severe assaults; question of ability of abuser to control behavior (i.e. where abuser socially dysfunctional, alcoholic, drug addict, mediator unlikely to work unless if in conjunction w/ counseling, therapy)

o  Does perpetrator admit abuse: if abuser admits abuse, permits mediator to consider possibility of mediation, conditions; if however, parties do not admit abuse, unlikely that mediation will help

o  Genuine view of victim of abuse in relation to continuation of mediation: halting negotiation may refer matter to courts, last thing victim desires; if possible necessary to obtain opinion of victim

o  How does abuse relate to power issues b/w parties: abuse form of power imbalance, may mean one party negotiating under duress; unfair to continue if parties not in situation where both can participate effectively

o  Is there risk to victim, mediator if mediation continues: if person cannot control behavior in mediation session unlikely that mediation will be successful or that party able to carry out agreement

o  Could mediation continue if parallel steps taken: first to protect victim, second to assist abuse thru counseling, therapy; perpetrator may give undertaking not to do certain things, consent to injunction; may seek presence of lawyer for victim to equalize power imbalance

o  Advise victim of abuse to seek independent legal advice to continue; suggest other support services (counseling)

o  Proper follow-up, monitoring agreement to ensure no violence

·  May be difficult for mediator to remain non-judgmental where abuse admitted; mediator must make it clear that abuse, violence is unacceptable; get commitment to ending it

Brown and Marriott, ADR Principles and Practice

Fisher and Ury, Getting to Yes

Fiadjoe, ADR: A Developing World Perspective