Mediation, or is it? Everything you thought you knew, but maybe didn't.

• Author: Maas, Earl H., III

With alternative dispute resolution occupying an ever more prominent place in counsel's lives, it's time to examine it more closely

MEDIATION. Why, sure, you know everything about that. Right? Don't be too sure. You may be wrong.

At a recent IADC meeting, the Defense Counsel, Corporate Counsel and Insurance Executive Committees held a joint meeting, at which a distinguished speaker made a formal presentation on the subject. But while he was talking, eyebrows cocked up, listeners became uncomfortable, and their body language showed that they were somewhat discordant with what was being said.

Later, we began to discuss concepts, as well as practical tips for alternate dispute resolutions. To everyone's surprise, we found that to some degree each of us from different jurisdictions had different spins on the terminology we use. The most surprising thing of all, however, was that there was a disagreement about the substance of the meaning of mediation.

The outcome was that we discovered there are jurisdictional differences in definition, ethics, and practice and procedure of mediation. Since many IADC members practice in more than one jurisdiction, these are important issues.

Thus, the three articles that follow are an effort to explore some of the distinctions and differences to be encountered in mediation. Mel M. Negussie discusses "How to Select a Mediator," Daniel J. Scully Jr. makes a "Jurisdictional Analysis of Mediation," and Earl H. Maas III writes on "Ethical Considerations in Mediation."

--PHYLLIS M. HIX

(IADC member Phyllis M. Hix practices in Kernville, California. She developed the theme of this presentation and selected the contributors to it.)

How to Select a Mediator

By Mel M. Negussie

MEDIATION is a process in which a disinterested third party--the mediator --facilitates discussions and empower parties to reach their own negotiated settlement by holding conferences, identifying disputed issues, defusing negative emotions, and suggesting possibilities for resolution.

Parties elect mediation, as opposed to other methods of dispute resolution techniques, for a variety of reasons, such as its less adversarial approach. To make the mediation worthwhile, parties must come away from the process with their reasonable objectives accomplished. The mediator, who can make or break the mediation, plays a central role in this undertaking. Successful mediators enable participants to manage the mediation themselves, while encouraging both sides to advance ideas and solutions. Hence, selecting the mediator should be a thoughtful and strategic decision, and not a knee-jerk reaction.

RELEVANT TRAITS THAT ONE SHOULD CONSIDER

1. Experience

   Experienced lawyers or retired judges, especially those possessing intimate experience with juries and personal knowledge of legal issues and recent verdicts, enhance the mediation process and significantly improve the likelihood of successful resolution of the dispute. It is always helpful to have seasoned trial lawyers look rationally at the whole picture. Mediators can provide a realistic view of what the parties reasonably should expect if the matter is not resolved at this juncture and can realistically describe what lies ahead for the parties if the case does go to trial.

   The mediator's area of practice also is critical. The mediator should be familiar with the law and trial considerations that govern the particular dispute in order to facilitate and direct the proceeding toward a productive exchange of ideas and solutions. For a successful mediation, it is beneficial for the mediator to have litigated or tried cases in the subject area of the action.

   When selecting a mediator, one should know whether the mediator is perceived as possessing a plaintiff or defendant orientation. At times, a plaintiff-oriented mediator can be helpful. For instance, if the defense case is strong, a plaintiff-oriented mediator may be in the best position to point out the holes in plaintiff's case. On the other hand, if the plaintiff's counsel is perceived as a weak advocate, a defense-oriented mediator may be successful in persuading an entrenched plaintiff to re-evaluate his or her position. Regardless, it is imperative that all parties sustain a sufficient level of trust with the mediator to continue a dialogue.

   It is equally important that the mediator be able to communicate directly with the parties--not just their attorneys--in a manner that will earn their trust.

   The qualifications of proposed mediators should be evaluated prior to any commitment. The Model Standards of Conduct for Mediators, which have been approved by the American Bar Association, the American Arbitration Association, and the Society of Professionals in Dispute Resolution states: "A mediator shall mediate only when the mediator has the necessary qualifications to satisfy the reasonable expectations of the parties." There are myriad sources available to probe a proposed mediator's reputation, such as biographical information, references, local bar associations, and personal contacts. Widely available sources, such as the Martindale-Hubbell Law Directory and Judicial Profiles, should be starting points. If the proposed mediator is a retired judge, there may be published opinions available to be scrutinized. Of course, details gathered from personal contacts in the legal community are crucial in acquiring more subjective information.

2. Temperament and Reputation

   Those whose attention span or patience level are low should refrain from assuming the role of mediator. The mediator must have patience and should refrain from leaping into the conflict. This is not to say that the mediator should abstain from pointing out the strengths and weaknesses of each side's case. But the mediator should not express advisory opinions concerning the over-all merits of the parties' positions. Otherwise, the continued and requisite confidence of both sides may be lost.

   The integrity of the mediator is essential since both sides must be comfortable and confident enough to divulge certain information that they feel will enhance the success of the mediation. According to the model standards, "the reasonable expectations of the parties with regard to confidentiality shall be met by the mediator." The mediator should allow parties to indulge in fictions or engage in posturing, as long as that is constructive. The mediator should remember that both sides have a desire to settle, otherwise they would not have elected to mediate their dispute.

   The mediator should conduct the proceeding in an, impartial manner and should serve only in those matters in which the mediator can remain evenhanded. Some jurisdictions, such as Minnesota, are considering adopting a code of ethics for arbitrators and mediators that includes a provision of "impartiality," obligating the mediator to withdraw if he is unable to conduct the process in an impartial manner.(1)

3. Methodology

   Some mediators facilitate discussion between the parties, while others evaluate each sides' strengths and weaknesses and make recommendations and predictions, or push parties to accept a particular solution. Some focus narrowly on the facts and issues that would be important in litigation. Others allow parties to define the scope of the mediation more broadly, which would include parties' bottom lines and intermediate positions. Regardless of personal methodology, according to the model standards, the "mediator shall conduct the mediation fairly, diligently, and in the manner consistent with the principle of self-determination by the parties."

   In most cases, the mediation begins with each side presenting its case to the mediator. Areas of disagreement are noted. At this juncture, the mediator may choose to meet and discuss separately with each side. Also at this time, experts and other witnesses may be used in an informal setting to provide the mediator with the framework of the case. The mediator may then engage in "shuttle diplomacy," transmitting information and evaluation on specific issues.

   The mediation then moves to the final step where the parties either settle the case, agree to seek further information before participating in further mediation proceeding, or conclude that the matter should proceed to trial. Most mediators take an active role in exploring these outcomes.

   Lawyers should be aware of rules that govern their own conduct during mediation. In Bernard v. Galen Group Inc.,(2) a federal district court sanctioned an attorney for violating the confidentiality provisions governing the, jurisdiction's mediation program by writing to the court a letter disclosing, among other things, specific dollar amounts and other settlement offers made during the mediation process.

4. Conflicts of Interest

   A mediator should disclose actual and potential conflicts of interest that are reasonably known to the mediator. Of course, parties may waive any objections and consent to retain the mediator. But the need to protect against conflicts of interest is paramount if the mediator has an existing--or potentially a future--professional relationship with one of the parties, especially if the relationship involves an issue that is substantially related to the matter being mediated. Otherwise, mediators could not only adversely impact the mediation proceeding, severely diminishing the opportunity for settlement, but also could risk their own professional relationships with potential clients in the future. The model standards recommend that mediators be prohibited from representing one party to a dispute against another in...