E. Final Joint Session

The mediation should conclude with a final joint session.[82] All participants should be present. The mediator will announce that the case settled, that the mediation is being continued another day or by telephone, or that the parties were unable to reach a settlement.

If the case has settled, the specific terms of the settlement should be reviewed and a preliminary settlement agreement executed by the parties.[83] A decision should be made as to who will prepare the formal settlement documents, including the papers of dismissal. The mediator should not participate in the formal memorialization of the settlement other than to confirm its terms.[84]

F. Continuing the Mediation

If the case is not settled the first day, the mediator should request that the parties keep the process going by meeting again or by telephone.[85] Rarely, if ever, will the parties harden their position or backtrack on what has already been accomplished. The worst that will happen is that they will not change their position. More times than not, the passage of time will bring progress. Generally, it is unnecessary to bring everyone back together again. It is enough that the mediator caucus with each side at their respective offices and report back to the other.

To set up future contacts, the mediator should verify with both sides the final demand or offer that has been made. To prepare for future contacts, the mediator can do several things. First, she can draft a summary of the position of each side by pointing out what the other side is arguing and the issues that must be resolved. Although a single memorandum might suffice, the better practice is to prepare a separate memorandum for each side. Second, if a legal question has arisen, the mediator might request the attorneys to prepare a legal memorandum answering the question or, with permission, do her own research. Third, in preparation for a caucus with one side or the other, the mediator might have opposing counsel put together a thirty-minute video of significant deposition testimony or a notebook of critical documents.[86]

VII. Qualities of the Mediator/Peacemaker

As a general proposition, the peacemaker is quite unique to the judicial process. He or she comes to the table not as an advocate, bent on winning the case, but instead as a facilitator trained to settle the case. Until recent times, only advocates participated in settlement conferences, seeking to win for their clients through the negotiation process. This strategy was to make the other side believe they intended, and were prepared, to go to trial unless the other side capitulated. Trained in advocacy, the advocate knows no other way than to focus on winning. On the other hand, the peacemaker’s training and focus is not to win for one party or the other, but to look at the case in its entirety and help resolve the conflict. The skills employed by an effective mediator seek compromise rather than submission, cooperation rather than confrontation, and creativity rather than rhetoric. The following discussion considers the qualities a peacemaker should express.

Date: 2015-01-02; view: 655