The Closer

A Mediation Newsletter April 2011

Mediation Protocol
by James Rainwater

Here is a simple outline of mediation procedure and practice. Most of this is common sense, but often steps are omitted or neglected. The following may assist with your next mediation.

First, more is better than less. Attorneys should provide all documents and materials pertinent to the mediation in advance. If you think something may be even the slightest helpful or important, you should mail, fax, or email it to the mediator. Pre-conference mediation documents are treated the same as confidential caucus communications during the actual mediation.

Second, the mediation conference is truly neutral. This is not the time to have a party served, and doing so can land the violating attorney in hot water. If you know a client's new wife/husband or girlfriend/boyfriend will have an extremely adverse effect on the other party, please advise your client to come alone. A regular mediation is usually filled with enough drama without adding extra actors to it.

Third, attorneys should work the issues, not the parties. Focus should be maintained on resolution, not posturing and snappy retorts. The mediator is there to facilitate a settlement, not referee a rugby scrum. By staying on topic, the clients may also be more apt to keeping their sights on the resolvable issues.

Last, if we maintain a high degree of professionalism, the conference will run more smoothly. Parties can detect the level of interest given to their situation, and providing that interest and attention will assist in distilling the issues that much quicker. By collaborating on a heightened level of intellectual awareness free of hubris, both sides can reap the benefits of calm and collected analysis. In the end, the parties must make the final decision to settle or not, and giving them the proper platform will assist in reaching that resolution.

Rainwater Law