RULES here, RULES there, RULES RULES EVERYWHERE!
There is no substitute for reading, knowing, and following the rules of one’s trade, and that includes work in mediation. A lawyer must follow the rules no matter where one practices law and a mediator must follow the rules no matter where one performs mediations. Now that we are all working virtually, practicing law or performing mediations frequently takes lace across many borders of states or countries. There is no substitute for knowing the ethical rules of the road, whether by statute, court rules, laws of other countries, or treaties, wherever the work occurs. Ethical requirements may vary widely from one place to another.
That said, although the wording may vary, there are many consistencies in best practices for facilitative and evaluative mediations everywhere.
1) Self Determination. This is a basic tenant of mediation no matter where you or the others are located. The mediator is not an advocate for either side. The mediator should be sure the ultimate decision on settlement of the case is the parties’ – that it is voluntary and non-coerced.
2) Impartiality. A mediator is often referred to as a “neutral.” This word is used both as a noun and a verb. It is descriptive of the mediators’ position and how they must act and also how they must be perceived. Mediators must be careful not to fall victim to their own actual or implicit biases and to recognize bias in others. If mediators find they have biases for or prejudices against either side , whether before or during a mediation, and they feel they can no longer perform their duties fairly, they should withdraw.
3) Conflicts of interest. A conflict can arise in a number of ways. For example, it would be a conflict if the mediator is related to or in a business relationship with one of the parties. The mediator should not accept the case. However there are instances in which the conflict may not be as apparent. In such instance, the mediator must nevertheless disclose the conflict or potential conflict and its potential implications, even if the mediator believes he or she can be fair. The mediator must give the parties a chance to discuss the issue privately. If the parties then all agree to go forward with the mediator anyway, the mediator may continue. Even if not always required under applicable laws or rules, putting the disclosure and waiver in writing is advised.
4) Appearance of conflict or bias. Mediators must be conscious of the appearance of conflict or partiality for or against a party. Perception can be as dangerous to the process as an actual conflict of interest. In such cases, some state statutes mandate following the same process required for actual conflicts.
5) Competence of Mediator. Mediators must maintain competence in technology used for mediations. This is one component of competence — of equal importance to knowing ethical and other rules of the relevant jurisdictions.
6) Competence of Parties. If at a mediation, a mediator suspects a party is incompetent due to drugs, alcohol or mental condition, the mediator should make sufficient inquiry to decide whether the mediation should proceed. If it’s determined the party is not competent for any reason, the mediation should not proceed.
7) Confidentiality/privileged. There are different rules on confidentiality depending on a mediator’s jurisdiction and the jurisdiction of the parties. In many states, for example, if the parties are in different rooms, virtually or physically , and one party shares information with the mediator, the mediator may not disclose it to the other side without express permission. The mediator must keep the confidences of each party. Often confidential communications of mediation parties are privileged by law, as well. That means a mediator must keep facts disclosed in mediation confidential from all others, including the court if called as a witness, unless all parties agree otherwise. Typically confidentiality requirements are found in the rules of evidence for the relevant jurisdiction but sometimes are set by statute or other law. Mediators must check the rules of any and all relevant jurisdictions because the amount of protection may vary.
Closer to home, Minnesota State Supreme Court ecently adopted rules for mediation that set the standard for Minnesota:
Mn Rule of Civil Procedure (MRCP) 114. 07 regarding Use of Evidence in Court states in part, “Without the consent of all parties and an order of the court,… no evidence from an [alternative dispute resolution] process or any fact concerning the ADR process may be admitted in any later proceeding involving any of the issues or parties.”
MRCP 114.08 Neutrals Duty of Confidentiality states in part “notes, records, impressions, opinions, and recollections of the neutral are confidential, and the neutral shall not disclose them to the parties, the public, or any third persons, unless (1) all parties and the neutral agree …or (2) disclosure is required by law, or professional codes …”
In all instances, the mediator must explain the scope of their confidentiality to the parties.
THESE ARE BASIC and ELEMENTARY practices that should be applied by every mediator with the primary and prevailing practice being to always check the rules, HERE, THERE and EVERYWHERE a mediation will take place.
Japan Adopts New Mediation Act and Sets Path to Accede to Singapore Convention
Japan’s New Mediation Act
On April 21, 2023, Japan announced the adoption of a Mediation Act, which lays the foundation for a robust mediation framework within the country. It provides that a Japanese court must enforce an international settlement agreement, once a party has submitted the agreement and documents proving that it is an international settlement arising from a mediation. To avoid such enforcement, an opposing party must establish to the court’s satisfaction that one of a limited number of grounds for declining enforcement has been established--such as:
Incapacity of a party;
Invalidity of the agreement under applicable law;
The mediator’s serious breach of applicable standards; and
Bias-related issues.
The Mediation Act was adopted to enhance Japan’s mediation infrastructure and encourage the use of mediation in cross-border disputes in Japan. The Act is seen as an indicator of Japan’s interest in leading the global mediation community to promote mediation as a means of resolving cross-border disputes—to demonstrate Japan’s mediation-friendly culture.
One of the additional significant implications of Japan's Mediation Act is its alignment with the United Nations Convention on International Settlement Agreements Resulting from Mediation (commonly referred to as the “Singapore Convention”). The Singapore Convention was signed by 56 countries, including the United States, to promote easier enforcement of mediated settlements across borders and now countries are beginning the process of ratifying it. The Singapore Convention became effective September 20, 2020, but only applies to any country six months after that country has deposited with the United Nations its ratification, acceptance, approval or accession. Right now, just eight countries are parties, but many will become bound in the coming years. Japan may be able to be at the forefront of the countries acceding to the Singapore Convention, with this new Mediation Act.
As an aside: The U.S. has not yet ratified the Singapore Convention. The American Bar Association has urged the Department of State to seek accession by the Senate of the convention as soon as possible, but the exact timeline for U.S. accession remains uncertain.
What!? Isn’t What I Said in Mediation a Secret?! - Part 2
In our last post, we spoke about the scope and sources of confidentiality and privilege. Today we will talk about the consequences of breach of those limitations.
CONSEQUENCES OF BREACHING CONFIDENTIALITY
Even if a party confirms that confidentiality protects information disclosed in mediation, the party also needs to understand what would happen if the obligation were breached. Courts have different views about what makes a party whole if a breach occurs. For example, the remedy might be some kind of compensation. Some jurisdictions, however, see money as an inadequate remedy for non-monetary harms. That may mean no adequate remedy would be possible. In other jurisdictions, the remedy might be some kind of order by a court to do or not do something to try to undo that harm or at least do no further harm. Some courts, however, do not have the power to compel or ban conduct. Another potential remedy might be paying over to the harmed party any benefit the disclosing party or recipients of the information gained by disclosure. This is more punitive in nature – seeking to undo the benefit realized from the breach, rather than seeking to undo the harm. It is therefore important to ask what would happen if a party didn’t abide by its commitment to confidentiality in the state, country or other jurisdiction where that breach is likely to occur.
CONSEQUENCES OF BREACHING PRIVILEGE
Privilege is held by the disclosing party in most instances, but in some jurisdictions, it is held by the mediator instead. It is therefore wise to confirm who holds the privilege to refuse to permit disclosure in one’s mediation and therefore the right to waive it. It is also important to know what is required to waive it (to make sure one doesn’t waive the right unintentionally). Often the privilege is asserted when the other party tries to compel disclosure of information shared in a mediation. In that instance, the party with the privilege can refuse disclosure and prevent a breach by objecting. Arguing over such issues, however, costs money and time. Hence, even in jurisdictions where the privilege exists and is clear, and where a party knows how to avoid waiving it, protecting against disclosure can be time consuming and expensive. Some mediation parties therefore talk at length with legal counsel before a mediation to decide just how much essential information to disclose in a mediation.
If you gain only one thing from reading these posts on confidentiality and privilege, it should be to do your homework before relying on any statement that a mediation, and what you share in mediation, is confidential.
What!? Isn’t What I Said in Mediation a Secret?! - Part 1
One reason I like mediation is because it allows the parties to agree on a solution to their dispute that works for them. This requires some level of candor with one another about what’s really at the heart of the dispute. To promote that candor, most legal regimes promoting mediation protect the information shared in a mediation from disclosure.
Those protections can vary by jurisdiction and if more than one jurisdiction is involved, the application of those protections becomes even more complex. This post will explains the sources and types of information that are protected.
PROTECTIONS FOR INFORMATION
You might think disclosure is disclosure, but that’s not necessarily the case. Rules protecting information from disclosure are categorized in two basic ways: confidentiality and privilege.
Confidentiality – Confidentiality means that information won’t be disclosed to anyone else. This protection is useful if a party is concerned about damage to reputation or the loss of value of proprietary information is shared broadly. Reputational concerns often arise in family disputes or other personal legal matters. Proprietary information protection is usually a concern in a commercial dispute. Just think what would happen if Coca Cola’s recipe were shared with the public, for example.
Privileged – In contrast, information is privileged if a court cannot compel disclosure in a legal proceeding. Suppose a party wants to admit some responsibility for a dispute, wants to acknowledge that the dispute isn’t solely the fault of the other party, that they both played a part in the controversy’s escalation. Suppose the party wants to apologize. This admission and apology might allow the other party to move beyond their differences and agree on a settlement. But the party who is thinking to make such an admission may be concerned it will be given too much weight by a jury or judge hearing a dispute. The disclosing party therefore may not want to admit any such responsibility without knowing the statement is privileged – that it cannot be discovered in any later court proceeding.
WAYS CONFIDENTIALITY/PRIVILEGE IS PROTECTED
Disclosures of confidential or privileged information are prohibited and/or prevented in different ways, in different legal systems.
Scope and Source of Confidentiality - Most agreements to mediate include an undertaking by the parties not to disclose to anyone else what is said in mediation. Generally, if the parties agree to keep something confidential, that promise will be honored. Some jurisdictions have also adopted specific mediation laws providing that the parties in mediation must not share disclosures outside the mediation, with only very limited exceptions. Even so, it is important to be clear about the scope of such confidentiality. Documents that already exist before mediation typically aren’t made confidential merely by mention in a mediation and documents prepared for a mediation may or may not be treated as confidential. Also, some information just isn’t protected from disclosure. For example, if a party admitted to abusing a child, then certain individuals, such as social workers, must report that abuse. Threats of violence often aren’t protected either. A party to a mediation therefore needs to understand both what’s covered in such an agreement or law and what exceptions might apply.
Scope and Source of Privilege - Laws, regulations, court rules, court decisions, and ethical rules all will often address what evidence can be shared in court. Depending on the nature of what a court wants to consider as evidence in a dispute and the type of dispute involved, these laws, rules and the like can vary significantly. Some courts limit evidence to what the judge requests and the judge, as a custom, may not ask for any information from a mediation. In the U.S., some states have adopted the Uniform Mediation Act, which has a broad prohibition of use of information from a mediation in court, with very specific exceptions. Those specific exceptions relate to such things as threats of violence, intent to commit a crime, or concealing on-going criminal activity. Other courts, including many U.S. jurisdictions, allow broad submission of evidence, but then expect the judge or jury to weigh the evidence to decide what’s relevant. As a result, those U.S. states often have specific procedural rules about when and what type of information from a mediation can be shared. They rely on evidence rules that tend to be more nuanced and subject to dispute about the types of evidence from mediation that can be shared or will not be admitted, as compared to the Uniform Mediation Act. Some have questioned whether those evidence rules apply to a mediation that isn’t required as part of a litigation process, as well. The scope of privilege has become a complex enough issue in California that, as of 2019, the state requires a mediator to provide all parties to mediation with a specific notice about the evidence rules governing information shared in mediation to make sure the parties understand the limits on what cannot be discovered and what cannot be used in testimony/court proceedings.
I’ll provide more information on the consequences of breaching these obligations of confidentiality and privilege in my next post. Stay tuned!
101 on Mediation for Non-U.S. Clients
A client from another country may never have participated in, or even heard of, mediation as an alternative dispute mechanism. Many will be familiar with arbitration and may believe that mediation is similar to arbitration. Besides informing the client about what mediation is and how mediations are generally conducted, it is important to also explain the benefits of mediation. If there is pending litigation in the U.S., the client has already been briefed on the U.S. legal system, including some detail about the discovery phase, which does not exist in most non-U.S. jurisdictions.
HOW IS MEDIATION DIFFERENT FROM ARBITRATION?
The client should understand that mediation does not result in a decision of the matter on the merits and the mediator is not the “Judge.” The client should not be expecting that the full case will be presented during the mediation. Most importantly, each party should be agreeing to the mediation with a true desire to resolve the dispute.
WHAT ARE THE BENEFITS OF MEDIATION?
Mediation is a lot less costly than arbitration or litigation. If a settlement is reached at the mediation, or even afterwards with the help of the mediator, the case is over. There is no waiting for an arbiter or judge or jury to issue a decision. There also is true finality because there is no basis for appeal. There is no decision to appeal because only the parties determine the outcome of a mediation; the parties agree on a settlement or they don’t agree on a settlement. That is all.
WHAT WILL HAPPEN IN MEDIATION?
It is also important to explain to non-U.S. clients the various forms that mediations might take. For example, the mediation may be remote or in person. The parties may start together in the same room and counsel may even make some remarks. There will have to be someone with full authority to settle the matter appearing for all parties. The client should be told about “shuttle diplomacy” as the mediator goes back and forth between the parties. Also, clients should not worry if the mediator takes a short or long time with a party. Definitely stress that whatever is communicated to the mediator is typically to be considered confidential unless the client gives permission to the mediator to use certain information in speaking with the other party. Remember that this is likely to be a client’s first experience with mediation. Informing the client about the process beforehand to avoid surprises will definitely increase the likelihood of success.
CONSIDERATIONS FOR NON-U.S. CLIENT
Lastly, be sure to have an interpreter at the mediation if the client is not fluent in English. Misunderstandings about what is being proposed or agreed upon can be serious. Cultural differences should be taken into account as well, not only as to the client, but as to the other parties as well.
Using Written Word to Avoid Failure in Mediations
When I was a transactional attorney, I cannot recall how many times I heard a client say they had reached a deal with a counterpart only to later learn that the deal wasn’t as firm as they thought. This most often arose not from bad faith but from the intent of one party being different from what was perceived cross-culturally by the other party. From that, I learned how to help clients make sure such misunderstandings didn’t occur and those tactics hold true for avoiding misunderstandings in mediation too. One key tactic is to recap in writing any key points to a mediation as you proceed.
Why?
“Why is that?” you might ask. First, sometimes a party in another culture will use a gesture (such as nodding) or phrase (such as “yes”) that suggests the party is agreeing when in fact it just means the party is listening. Second, many people have stronger skills in writing than they do in listening or speaking in a non-native language. Third, many parties have to report to their higher-ups and it is useful to have something in writing to make sure they’re reporting the discussion accurately. Fourth, it can’t hurt. That is to say, I have never heard any party object to an effort by the other party to make sure they are understanding what is being proposed or conveyed. The time is well worth the effort. Positions are clarified and the parties do not waste time pursuing inconsistent terms.
What?
“What should you recap?” you might ask. First, be sure you understand what the key issues are in a dispute from the perspective of the other party. If, in an opening statement, they have shared some insight on those points, it may be useful to recap those points in writing. If a party has made a proposal and you’re considering it, you should recap the proposal to make sure you understand it. If, on the other hand, the other party has explained that it objects to your proposed settlement, you may recap the reasons the other party gave, so you can then address those objections one by one. Finally, once an agreement is reached, recapping the key terms before anyone drafts a settlement agreement is useful. Doing so will often help trigger additional logistical questions about settlement terms that can be hashed out before anyone puts pen to paper to draft a settlement agreement itself.
When?
“When would a recap be useful?” you might ask. As the above discussion about written recaps suggests, written recaps can be useful at the early stages of a mediation or even before a mediation if pre-mediation briefs are shared with the mediator and the mediator is seeking to understand a particular client’s real objectives. Recaps can be helpful to keep negotiations on track at key points during a mediation. They can be useful to make sure the parties have agreed on a settlement when they think they have a deal. In sum, consider the utility of a recap at regular intervals if the parties are from different cultures and definitely to verify the terms of any settlement agreement before it is fully drafted.
How?
“How detailed does the recap need to be?” you might ask. The less wordy a written recap is, the better, when the person reviewing the recap is functioning in a non-native language. Complexity, detail and length vary, however, depending on the settlement terms. The key is to present ideas in plain language, with short, simple sentences, even if that makes the document longer. Outlines or bullet points of terms are advised, in contrast to long narratives. It is best to avoid more than one settlement term per sentence.
Who?
Who can use this tool? As a mediator, I have used periodic written recaps to make sure all the parties are tracking one another. I have also seen both parties or their respective legal counsel use written recaps to make sure there’s no disagreement OR to clarify where disagreement lies. Anyone who is concerned that the parties might miss a settlement opportunity due to miscommunications, should use this tool to increase the likelihood of a successful mediation.
Give it a try; I think you’ll like it!
Help Your Mediator Help You - Preparing for Mediation
Your mediator is here to help you! Still, your mediator needs your help too. It is a collaborative, not an adversarial relationship. That’s one advantage of mediation over trial. All sides want what’s best for their clients, and argue for that, but in a mediation the mediator is the neutral “in between” who needs to have an ability to listen and accept various points of view and a grasp of the parties’ motivations, personalities, and wants—as opposed to needs, in addition to an understanding of the facts of the case.
So how can you help your mediator help you?
Promptly send back any forms such as your mediation agreement, signed by all parties required and their attorneys - The mediator will not begin any work on your case until having received a properly signed agreement that includes an agreement to the mediator’s fees and an agreement to abide by the rules of mediation, as required by statute, court rules and/or treaties.
Be available for any pre-mediation calls - These are important calls between just the attorney(s), client(s), and the mediator. They are important for both the mediator and the parties as an informal get-together. They give the client a chance to meet and get to know the mediator, making the mediation itself more comfortable. These calls give the clients and attorneys a chance to ask questions about the process, test their equipment, become more confident in the confidentiality of the process (whether a virtual platform or otherwise), when invited to talk with the mediator or attorney in a private room. They are also very important for the mediator to get to know the attorneys and the clients. The mediator has an opportunity to consider the clients’ feelings about the case and to see if they are inclined to negotiation, or resolved to go to trial “no matter what” — whether they are passive, frightened, tending to explode, resolved, or otherwise.
Promptly answer and return the mediators pre-mediation requests for information - It is very helpful to the mediator to obtain answers to questions such as:
What is the theory of your case?”
“Have you discussed settlement with the other side?”
“What is the last demand or offer made for settlement and by whom?”
The answers to these questions will help the mediator know where to start the mediation and save time.
Send the mediator copies of the complaint, answer, any prior important relative motions made to the court and the court rulings - These items will help the mediator to know which issues are in dispute and which issues have already been resolved, allowing everyone to move forward without rehashing anything, risking the opening of old woods and covering old ground, thus making the actual mediation go more smoothly.
Be prepared and help the mediator prepare by sending copies of the most important cases, statutes, treaties or rules, either as attachments or by use of links with your mediation statement explaining your position - Sending this information ahead of time to the mediator allows time for review and preparation and clarifying questions, if necessary.
By helping your mediator to properly and adequately prepare for your mediation, as well as get to know the attorneys and clients informally, your mediator can better and more efficiently help you successfully get your case settled in a timely, cost effective, and less adversarial manner.
Starting Off on the Right Foot
It is surprisingly easy to jeopardize a successful mediation before the mediation even starts. Demanding a joint session can be risky. An attorney may want to appear as an advocate for his or her client, to show that the client is being zealously represented. That may help the lawyer’s relationship with the client, but it may jettison any chance of success at resolution of the dispute.
That’s especially true in cross-border mediations. Cultural cues and understandings are a bit more subtle but just as key in making sure all parties maintain a desire to reach a resolution. Here are some tips to making sure you don’t ruin the mediation before it has even started:
If a mediation is in person and involves people from another culture, find out ahead of time what is an appropriate greeting. For example, will shaking hands – something we take for granted in the U.S. – be the acceptable greeting? In some cultures the greeting is in the form of a bow. In other cultures shaking hands with someone of the opposite sex is forbidden. Besides creating an awkward moment, doing the wrong thing can be offensive.
Find out about any important business customs. In Asia, for example, the manner in which you present a business card may be just as important as having a card to present. And it is not just providing the card with two hands, as many have seen in films. An important aspect of this greeting is taking the time to look at the card and to acknowledge the information on the card. Likewise, seating a person in the appropriate location at a table may be an important sign of respect. If you’re the one arranging for the space, make sure you discuss seating ahead of the mediation.
Make sure you know of any physical needs of participants. Offering some self service coffee, tea and water may be customary in the United States, but in other places more may be expected. Attendees may have special dietary or medical needs, as well. Planning for these in advance of mediation shows consideration and will allow everyone to be comfortable, increasing the likelihood of success.
Set the tone with your appearance even virtually. In the new day of remote mediations, how you appear “on camera” sets a tone, just as it would in person. Certainly business attire is appropriate; but consider your background, as well. If you can blur the background or make sure it is a professional setting – not your kitchen – you show that you take this process seriously, that you and your clients are serious about resolving the dispute. If the mediation involves parties from another country with a very formal court system, this will be vital.
Help your client understand the opportunity that mediation presents and how it fits in the process of resolving the client’s dispute. If your client is from another country, make sure you explain the role of the mediator and the Judge and the difference between them. There are many countries where mediation is not offered as a form of dispute resolution, or mediation is limited to consumer or family issues. Mediation can be different in format and function. Helping your client understand what to expect will help your client feel confident, in control and focused on resolving the dispute instead of spending energy trying to figure out what’s happening.
Discuss your clients’ goals, concerns and expectations. Planning ahead of time and asking questions will best serve your clients and at least keep the door open to a possible amicable resolution.
Use of Interpreters at Mediations
Parties come to a mediation with a history of misunderstandings in most cases. Misunderstandings are often the causes of the dispute. The last thing parties and their counsel want at a mediation is to further any misunderstandings or cause new ones. When the parties speak different languages, that risk increases.
Even if parties/counsel believe that they are fluent in another language, it is always wise to have an interpreter if the mediation is being conducted in another language. The parties and counsel should be concentrating on mediating, not on interpreting. The interpreter should be an official interpreter rather than a friend or colleague who knows the language. Terms used in legal disputes are often technical and/or legal; not everyone knows such terminology. Moreover, interpreting requires intense concentration and trained interpreters know when they need to take breaks and how to manage the process to sustain their performance throughout the mediation. A interpreter friend may also have difficulty keeping to the interpreter role – becoming caught up in the process of the mediation and forget to interpret.
Having a neutral interpreter also mitigates an interpreter putting his/her own spin on what is being communicated. A neutral interpreter has no interest in the outcome of the mediation and therefore is less likely, even inadvertently, to alter interpreted statements to favor one side or the other.
This also allows the party or lawyer who speaks both languages to more easily identify mistranslations. The official interpreter will not be familiar with the contours of the dispute, may not understand something that others do from context, or may not be familiar with legal or technical terms. Parties/counsel can speak up and try to explain the particulars to the interpreter. There is nothing wrong with doing that. Mediations are not “recorded” in any way – there is no court reporter or possibility that what is discussed in the mediation will become part of any record. Although getting the words right is important to facilitate the mediation, perfection is not a requirement.
If parties are going to use an interpreter, here are some tips:
Discuss the plan with the mediator and other parties. Typically in mediations interpreting would be serial rather than simultaneous. That means more time is needed to allow for repetition of any comments made to and from the person who requires the interpreter. Using an interpreter may also require added breaks, for the interpreter to maintain high quality interpretation.
Plan time to allow the interpreter to identify the interpreter’s needs. Pause to allow interpreting every few sentences and avoid interrupting one another so that one person’s comment can be translated before another thought from another person is raised.
Brief the interpreter on the background of the dispute and make sure the interpreter understands the confidential nature of the mediation. It may be appropriate to have the interpreter sign a confidentiality agreement, as well, if all potentially applicable law does not require the interpreter to keep the mediation confidential.
Context Matters – How to Avoid Missteps in Cross-Border Mediation
Sara Sandford and Lisa Savitt recently shared some of their tips for avoiding missteps in cross border mediation at the Union des Avocats International/International Association of Lawyers 30th World Forum of Mediation Centers conference held in Malaga, Spain. The interactive program focused on understanding the impact of cultural differences and legal systems on mediations. Lisa and Sara shared tips, including:
Working with clients to understand their and their attorneys’ expectations regarding the mediation style and format.
Preparing for the mediation by studying cultural differences among the countries of origin of the participants, which could impact:
Goals – solution/relationship
Attitudes – win/win or win/lose
Personal Styles – informal/formal
Communication Style – direct/indirect
Time Sensitivity – precise/casual
Trust – how it’s demonstrated
Emotionalism – high/low
Form of Agreement – specific/general
Agreement Process – bottom up/top down
Team Organization – one leader/consensus
Risk Taking – high/low
Format of Mediation – formal/informal
Developing strategies for how to help rebuild trust or confidence, when someone unwittingly disrupts the flow of mediation by a misstep.
In addition to knowing the issues and parties’ stated objectives, mediators have to understand the basic legal regimes of the matter being mediated. They also need to understand and plan for the conscious and unconscious expectations and attitudes brought to the table – particularly when there are substantial differences in how parties might approach dispute resolution and decision-making. Lisa and Sara explained how essential it is for mediators to help the parties anticipate these kinds of challenges in advance of a mediation so missteps don’t derail a mediation that could otherwise be successful.