G. Be Friendly and Personable

An effective peacemaker should at all times be friendly, personable, pleasant, and polite. This can be difficult, especially at the end of a complicated and frustrating mediation when all of the parties and attorneys are accusing each other of bad faith. The mediator must be the one person to stay above the fray. The message to be conveyed is that if the mediator can remain pleasant and positive in spite of the problems, the parties likewise should keep trying for an amicable resolution.

Because friction nearly always exists between the parties, an outgrowth of the adversarial system, the mediator should present the opposite side as favorably as possible. For example, it helps a plaintiff to know that the adjuster is cooperating and willing to make telephone calls to get a matter resolved. Also, if opposing counsel is cooperative, it is helpful to point this out. The mediator should try to defuse any irritations that might exist on either side. It is important that the mediator not speak critically of the other party or counsel. This only adds fuel to the fire and is unnecessary and counterproductive to the settlement process.

H. Be Professional

A mediator must be professional at all times. She must be absolutely neutral, nonjudgmental, and never betray the confidence the parties place in her.

I. Be Neutral

Neutrality is maintained when the mediator deals with the interests of all parties on an equal basis. What she does for one side she must do for the other. There must be symmetry. Not only must she be neutral in fact, but she also needs to be concerned with the appearance of neutrality. Neutrality begins when the mediator is first retained by the parties and continues through to settlement.

When the mediator is retained to handle a mediation, one of the parties may wish to contact her to ask questions about the process. Such contacts are invited, and there is nothing improper concerning such ex parte communications.[96] To avoid the appearance of partiality, however, the mediator should contact the other side and explain that certain questions were asked and ask whether counsel or the party has similar questions. In the alternative, the mediator could set up a conference call with all parties and counsel participating to discuss the ground rules.

Neutrality and the appearance of neutrality require that the mediator travel to the mediation site alone and not with one of the parties or attorneys, even if that would be more convenient. Even though traveling together would be no different than a private caucus, there is the appearance that the involved party would gain an advantage.[97]

At the mediation site, the mediator should avoid small talk with those who have arrived first while waiting for the others. The mediator should remain in the waiting room until all are present and then enter the conference room with the latest arrivals.

At the commencement of the joint opening session, the mediator should be seated in a neutral place, usually at the end of a rectangular table with no one seated on her immediate right or left. If at a circular table, she should sit an equal distance from each side.

In her opening remarks, the mediator should carefully explain her neutrality and give a pledge that she will maintain it at all times. In speaking to the participants, she should look at all participants and not just one person or side. Nothing can be more disconcerting for a party or side than to be ignored by the mediator as she speaks.[98]

When taking meals, neutrality is maintained by eating alone, unless all agree that the mediator can use the lunch hour as, for example, a caucus. When doing so the mediator, at a minimum, should pay for her own meal—she can pick up the entire tab if she wishes. If lunch is brought in by the host, the mediator should still pay for her own food. Normally, the host will insist on paying, but this should be rejected even if the other side is not present and will not know. The fact is that the host will know and will be impressed that the mediator is so concerned about the appearance of neutrality that she rejects a free meal.

Finally, neutrality extends to working with the attorney and her client. If the mediator wishes to speak alone with counsel outside the presence of the client, she should first explain that as part of the process, the mediator needs to speak alone with counsel. However, she will do this on both sides. If a client believes only her attorney is being spoken to alone, she will quickly become concerned about what is being said and why they cannot speak in her presence. Likewise, if a conflict arises between the attorney and her client, the mediator should remain neutral and say nothing. The worst thing she can do is side with the attorney because this will appear that the two are ganging up on the client, when they really only have her best interests at heart.[99] By remaining neutral between the attorney and client, the mediator can still help the client if she has built the proper rapport and trust. At some point, the party will have to turn somewhere for guidance if she has lost faith in her own attorney. The patient mediator is then positioned to help.

J. Be Nonjudgmental

In some mediations, the mediator is asked to be evaluative and place a value on the case once she has heard all of the evidence. If the mediator is not so requested, she should remain nonjudgmental for several reasons. First, whatever value the mediator places on the case, she will be favoring one side over the other, or so it will be perceived. If the plaintiff asks, and the figure given by the mediator is favorable, there is little incentive for the plaintiff to go below the figure for, after all, that is what the mediator said the case was worth. And if the defendant asks and the figure given is acceptable, there is no real incentive for the defendant to go above it. Yet, if a case is to settle, both parties must go beyond what they would like to settle for.

Second, a request that the mediator place a value on the case could actually be a way to test the mediator’s bias. For example, if, at the plaintiff’s request, the mediator gives a value that counsel feels is too low, the plaintiff will conclude that the mediator has poor judgment, is inexperienced, or is defense-oriented. Likewise, the defendant and counsel may feel the mediator is plaintiff-oriented if the figure is too high. It becomes a no-win situation for the mediator, whichever way she goes. More importantly, by giving her evaluation, she will, at a minimum, lose rapport with one side or perhaps both.

Third, the experienced mediator recognizes that no one knows what a jury will do. In giving an evaluation, the mediator might just be proven wrong if the case later goes to trial. The bottom line is that the mediator does not have to make such a judgment call and risk antagonizing one party or the other and undermining the rapport and trust she is trying to build.[100]

Fourth, many times a settlement figure reflects considerations other than money. A plaintiff may wish to end the case because of the stress it is causing or because bill collectors are constantly hounding her and she wishes to pay them off. She might, therefore, go beyond the value the mediator puts on the case. Likewise, a defendant may pay more than the mediator’s valuation because she wishes to avoid the possibility of a run away jury verdict.

Being nonjudgmental also means not judging the worthiness of the parties. Some people are simply more attractive and likeable than others and to lean towards them in the settlement process could cause an injustice. All persons are worthy and have the right to find resolution that fulfills their best interests. The mediator need only find a way for both to end the dispute and part in peace. This is the essence of being nonjudgmental.

K. Keep Confidentiality

An important part of the caucus mediation is that it permits the parties and counsel to speak to the mediator in strict confidence. It is with the assurance of confidentiality that they are willing to discuss the weaknesses in their cases or what they feel a jury will do—best and worst case. Confidentiality permits them to speak candidly to the mediator and discuss various strategies to find resolution. The parties and counsel can even signal how far they are willing to go to reach settlement knowing that such information will not be disclosed to the other side.[101]

L. Be Principled

Mediators must operate under the highest ethical standards in the profession because of the very nature of their work. They must be principled, trustworthy, dependable, and act with integrity. Their primary consideration is always the interests of the parties they assist and not their own financial gain. Service to others must be their highest motivation.

At all times, the mediator should respect the attorney-client relationship. This means the mediator should not directly communicate with the client without the knowledge and consent of the attorney. The mediator should remember that she is the guest at the mediation table whose purpose is to assist and not manipulate the process.

Finally, the mediator should encourage the attorneys to continue direct communications between them, particularly after the first day. Again, the mediator is assisting in the process and not dictating how it is to proceed.

Date: 2015-01-02; view: 679