Basic Skills for the New Mediator

by Allan H. Goodman

Overview

This book provides a detailed overview of mediation, from the premediation conference through all stages of the mediation session. It guides the new mediator through the mediation process by answering the one hundred questions most frequently asked by new mediators. The book has been used successfully for self-instruction and as a training manual. Experienced mediators and attorneys who represent clients in mediation will also find this book extremely useful. The Appendix 'Everything You Never Wanted to Know About the Rules of Evidence' is especially valuable for the non-attorney mediator, who must often deal with the evidentiary vocabulary of the legal profession. You will learn to establish your authority as a mediator, schedule the mediation session, deliver the mediator's opening statement, prioritise issues, preside during joint sessions, conduct private caucuses, overcome impasses, identify 'hidden agenda' and 'throwaway' items, deal with parties who lack settlement authority, and aid parties to achieve a viable settlement.

Product Details

ISBN-13:	9780967097336
Publisher:	Solomon Publications
Publication date:	01/28/2016
Edition description:	New Edition
Pages:	110
Product dimensions:	5.90(w) x 8.70(h) x 0.40(d)

About the Author

Allan H. Goodman is a judge, a mediator, an arbitrator, and an author of fiction and nonfiction. He is a graduate of the Georgetown University School of Foreign Service and the University of Toledo College of Law and a member of the bars of Virginia, Maryland, and the District of Columbia.

Table of Contents

What Is Mediation?
What Is The Goal of Mediation?
Why Does Mediation Work?
How Does Mediation Work?
What Is The Difference Between Mediation And Arbitration?
Is Mediation The Same as Non-binding Arbitration?
What If Both Parties Have Claims Against Each Other?
When Do Parties Agree to Resolve a Dispute by Mediation?
Are All Disputes Susceptible to Mediation?
Should I Suggest Mediation to Parties Who Have Already Decided on Arbitration?
How Do Parties Pick a Mediator?
Do Some Cases Need More than One Mediator?
Do I Have to Be an Attorney in Order to Be a Mediator?
How Can I Understand the Legal Issues If I Am Not an Attorney?
Should I Have the Parties Sign a Written Agreement?
How Do I Protect Myself from Liability?
If I Am a Good Arbitrator, Does this Mean I Will Be a Good Mediator What Do You Mean the Mediator's Authority must Be Earned?
What Questions Do I Ask about the Case When I Am Appointed as the Mediator?
What Information Do I Disclose?
How Do I Communicate with the Parties after I Am Appointed as the Mediator?
I've Been Appointed and I've Made the Necessary Disclosures - Now What Do I Do?
What Do I Discuss in the Preliminary Conference Call?
What Should the Parties Include in the Premediation Memorandum?
What Documents Do I Need to Review after I Am Appointed as the Mediator?
What Schedule Should I Propose for the Mediation?
Should the Parties Bring Their Attorneys to the Mediation?
Why Are Attorneys Sometimes an Impediment to Mediation?
What Do the Parties Need to Do to Prepare for Mediation?
What If the Parties Ask Me to Arbitrate the Dispute If the Mediation Does Not Result in a Settlement?
Where Should the Mediation Be Conducted?
What Facilities Do I Need to Conduct a Mediation?
What Seating Arrangement Is Used for the Mediation?
Do I Always Need a Conference Table?
What Should Be the Mediator's Demeanor?
What Is the General Procedure Used at a Mediation?
Who Is Allowed in the Mediation Session?
May I Exclude Parties from the Room?
What Should I Do If for the First Time at the Mediation I Recognize a Participant as Someone That I Know?
How Do I Avoid Improper Contact with the Parties During the Mediation?
What If One Party Is Represented by Counsel and the Other Is Not?
Does Mediation Require a Court Reporter and a Transcript of the Proceedings?
Should I Take Notes During the Mediation?
Should I Ask Permission to Take Notes?
Should I Inform the Parties That I Will Destroy My Notes?
Is There Anything I Should Not Do During a Mediation?
What Is Co-mediation?
The Joint Session What Is the Purpose of the Mediator's Opening Statement?
How Do I Explain the Mediator's Role and the Mediation Process in My Opening Statement?
What Authority Do I Have in the Mediation Process?
How Do I Begin to Establish Authority?
How Do the Parties Present Their Opening Statements?
What Can I Learn from the Demeanor of the Parties in the Joint Session?
What Are the Advantages and Disadvantages of Allowing the Parties to Make Opening Statements?
How Do I Distinguish Between Argument and Fact?
How Do I React to the Parties' Opening Statements?
What Can I Do If I Believe an Opening Statement Is Too Long or Too Detailed?
What Comments Do I Make at the Close of the Parties' Opening Statements?
What If a Party Brings Voluminous Documentation to the Mediation?
What Do I Need to Accomplish in the Joint Session?
How Do I Assure That I Have Understood What the Parties Have Said in Their Opening Statement?
Should I Rank Issues in Order of Priority?
The First Private Caucus Should I Have the Parties Rank the Issues in Order of Importance?
What Effect Does Divulging Confidential Information Have on the Parties?
What Questions Should I Ask in the First Private Caucus?
How Do I Inform a Party of a Weakness in its Case?
If it Appears That There Is an Important Question or an Issue That Both Parties Are Intentionally Avoiding, Should I Ask the Question or Raise the Issue?
What If a Party Fails to Answer My Question in the Private Caucus?
How Do I Get Past a Party's Certainty?
What Are Hidden Agenda Items and Why Are They Important?
What Are "Throw-away" Issues and Why Are They Important?
What If a Party Seeks Legal Advice from Me During the Caucus?
How Do I Deal with Hostile Attorneys?
Will Attorneys Make Objections During the Mediation?
Does the Person Who Wrote a Document Have to Be Present at the Mediation?
Are Summaries of Documents Properly Submitted in Mediation?
The Second Private Caucus and Beyond - Achieving Settlement. How Do the Parties Move Towards Settlement?
How Are Settlement Offers Transmitted?
How Do the Parties Finally Reach Agreement?
How Do I Deal with a Party Who Lacks Settlement Authority?
What Can I Do If the Mediation Reaches an Impasse?
Should the Parties Put Anything in Writing at the End of the Mediation If They Reach Agreement?
Who Drafts the Settlement Agreement?
What If I Believe the Settlement Is Not Fair?
Who May Decide to End the Mediation?
When Are My Duties Concluded?
What Should I Do with My Notes?
What Should I Do with Documents the Parties Have Submitted to Me During the Mediation?
May I Discuss the Outcome of the Mediation?
How Is a Mediation Settlement Enforced?
What If the Parties Do Not Abide by Their Settlement Agreement?
How Do I Arrange Compensation for My Services?
How Do I Make Sure I Am Paid?
Appendices
Sample Agreement Between Mediator And the Parties
The Stages of Mediation
Everything You Never Wanted To Know about the Rules of Evidence

Introduction

Mediation is probably the least understood method of alternative dispute resolution. It is often confused with arbitration, and many people use the terms arbitration and mediation interchangeably. The mediation process allows the parties to a dispute to select a neutral individual, known as the mediator, to aid them in reaching settlement. The mediator does not decide a winner or loser, but facilitates discussions between the parties. Compared to litigation and arbitration, mediation is faster and less costly. When mediation is used effectively, even the most difficult issues can be resolved to the satisfaction of the parties, without the time, expense, and emotional toll exacted by other means of dispute resolution. I derive a great deal of satisfaction from acting as a mediator. The mediator may communicate directly and confidentially with the parties, and work together with them to seek a solution. The non-adversarial nature of the process and the parties' willingness to resolve the dispute creates an environment which often leads to a settlement that is satisfactory to all.

I am amazed at the swiftness of mediation and the magnitude of the disputes that are settled. The parties are also surprised at the effectiveness of the process. The extent to which they may have compromised their claims in order to achieve settlement is often justified by the savings in legal fees and other costs which would have been incurred if other methods of dispute resolution had been used.

This book suggests answers to one hundred questions a new mediator might ask concerning the mediation process. The answers are based upon my experience as a mediator, and are solely my opinions.

Editorial Reviews

A methodical introduction . . . provides a detailed outline of what to expect, what to plan for, and possible flash points. -- (April, 1997)

Nat. Institute for Dispute Resolution News

. . . provides a no-nonsense resource which will be valuable to . . . a mediator long after he or she is "new."

Online Journal of Peace and Conflict Resolution