Vol. 29, No. 6 #6 (December 2006). Mediation Advocacy.

• Author: By Amy B. Jenkins

Wyoming Bar Journal

2006.

Vol. 29, No. 6 #6 (December 2006).

Mediation Advocacy

WYOMING LAWYERDecember 2006/Vol. 29, No. 6Mediation AdvocacyBy Amy B. Jenkins

Mediation is generally defined as a voluntary, non-binding process in which a neutral third party facilitates communication between the parties and their attorneys to explore settlement possibilities in a creative and collaborative fashion. The mediator has no authority to impose a settlement, but explores the strengths and weaknesses of each party's case to move them toward a mutually acceptable resolution of the dispute. National statistics indicate that approximately 85% of the matters mediated are settled in one session or shortly thereafter. Mediation often succeeds when more traditional approaches to settlement are unsuccessful in resolving the dispute. A key component in the success of mediation is the participation of the parties and their attorneys. This participation also insures that the parties are satisfied with the resolution, committed to settlement and are much more likely to abide by the terms of the settlement agreement.

Mediation is attractive because it is essentially risk free. Since the process is voluntary, confidential and non-binding, there is little to lose in participating. The clear benefit of the possibility of settlement far outweighs any perceived risk of exposing one's client or theories to informal discovery. This is particularly true in light of the confidentiality protection. Even if the matter does not settle at the mediation, the parties are better focused on the issues in dispute and are able to formulate cost effective discovery and trial plans.

A mediation session is typically conducted in an informal setting, such as a conference room in a law office. The rules of evidence and procedure are not enforced, so the parties have the opportunity to communicate directly to discuss the issues in an open, yet controlled and structured setting. Communications made during the course of the mediation are confidential, and the participants will sign a confidentiality agreement to that effect prior to the mediation.

Attorney Preparation

The amount of preparation by the attorney varies in each case depending upon the complexity of the legal issues and the level of emotions of the parties. Attorneys will often submit confidential materials...