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American Bar Association - Defending Liberty, Pursuing Justice

 

Vol. 15, No. 4

Arbitration & Mediation

Features

 

Care and Feeding of a Mediator

I’m one of the old guard—in the first wave of attorneys trained to serve as a volunteer mediator under Superior Court Rule 170 in New Hampshire. As with any volunteer effort, there are differences among those who provide the service, those who schedule the service, and those who use the service. My intent in this article is not to diminish the great work done by all involved in the process but to strengthen the process by increasing sensitivity toward the burdens imposed on mediators—paid and unpaid, but especially those who work without compensation.

To the Attorneys
Do not submit mediation statements three days before the session. Submit them at least 10 days before the session. And please mail them. It’s not good manners to send a fax with 52 pages of attachments and exhibits.

Don’t require us to call the court to chase down your summary. Be sure to include substance in your summary. Don’t send the mediator your case structuring summary with a different caption. The mediation summary should reflect the current status of interaction with the other parties. Also, reciting the text of the pleadings does nothing to help us understand the differences between the parties.

If you’re going to settle your case in advance of mediation, please notify the mediator. We don’t want to prepare for a case that is resolved or will be continued.

If your case is not ready for mediation, please notify the court well in advance of the scheduled date. Mediators need to prepare for the session by reviewing the initial pleadings, summaries of the parties, and they often do research. If you’re going to request a continuance, tell us.

Mediation is a serious process. Treat it with the same respect that you treat a bench trial. Be prepared. Arrive on time. Prep your client. Make it clear that it’s not like a television drama—it’s not a courtroom and there is no testimony.

Don’t over-schedule and say you have a “short motion” to argue and will be right back. We’ve all been there and know that a “short motion” can become a two-hour wait in a blink of the eye. The mediator has cases waiting. A 30-minute delay impacts all the other cases.

Have appropriate settlement authorization. Don’t come to the table with $5,000 “nuisance value” authority when you know that the case is worth far more. And don’t make us spot you the proverbial “dime” to make a phone call to some distant adjuster or supervisor. Mediation is not a surprise process. You should already know the position of the opposing attorney and the magnitude of the dispute.

Please don’t come to the mediation and tell the mediator that the defendant’s counsel “hasn't had a chance to depose the plaintiff, and we're not in a position to know how to value the case.” In the same vein, if you represent the plaintiff, don’t come to the mediation stating that you really can’t settle the case because the plaintiff isn’t at a medical end result, or that you haven’t had a chance to nail down a critical witness or expert opinion. Mediation is not the place for a little free discovery. If you’re not ready, file your motion to continue and propose a new date.

If you have a complex or difficult case, be sure to ask for a half- or full-day time slot for your case. You will not get extra time unless you make the request. If you have a unique situation or a difficult client, ask for a private session at the earliest opportunity to share your concerns with the mediator. The only way we can help you to deal with special circumstances is if you share the information.

Mediation is not a trial. Be brief. Be concise. There is no need for theatrics or puffery. A good mediator has read the summaries, noted the differences, and reviewed the pleadings.

If you had a good experience with a particular mediator, feel free to ask the court for a special assignment on your next case. It may not be practical in all situations, but you may ask.

Show your appreciation. Mediators are people too. Thank then for helping to move your case forward. If the case resolves after the mediation, tell the mediator—maybe a friendly phone call or note of appreciation. Send a copy to the clerk of court so there’s feedback as to how well the mediator did.

To the Clerks of Court
Remember that some of us are volunteers. Treat us as you would a visiting judge. Don’t simply pass a pile of case folders across the counter and holler out a courtroom number or conference room location. A cup of coffee goes a long way. (A parking space at some courthouses goes even further!)

Make sure the mediator has sufficient space for a private caucus and the assistance of a bailiff or other court officer. If you know that there are several parties, counsel, adjusters, and other camp followers listed on the case, please provide adequate space and chairs for everyone. Know your mediators. Try to accommodate the style of the mediator as you would the style and requests of a visiting judge. And, if we ask for too much, let us know when we overstep.

Visit the mediation session on occasion to thank the mediator. Watch part of the session if the parties are agreeable. Let the attorneys, parties, and mediator know that the court considers this a very important process. Remember that the attorneys and adjusters do this for a living. The plaintiff and many defendants have never been to court, let alone to a mediation session. They are impressed when a clerk or deputy clerk simply stops in to say hello and shake hands.

Don’t schedule a mediator for more cases than can be effectively handled in a day. Remember, we have to prepare and review case summaries. Two hours may not be adequate for a four-party case with cross complaints and the like. In a complex case I’ve spent in excess of eight hours in review and preparation, only to have the session canceled a day before the mediation. The time commitment to be an effective mediator is significant.

To the Judges
Effective mediators reduce the load on your calendar and free you up to handle more difficult and complex matters. When you know a mediator is at the court house, stop by, say hello and thanks. It’s nice to know that the judicial side of the equation considers our contribution beneficial to court.

When meeting with the attorneys in the structuring conference, make inquiry as to whether the case needs more than a two-hour assignment before a mediator. Let the attorneys know that if the case expands after the initial assignment is made and they need more time, they should immediately notify the clerk’s office or file an appropriate motion.

When motions to continue a mediation session are filed on short notice, consider if sanctions are appropriate for abusing the process. If we spent hours preparing for a case and it’s continued the day before the session, it diminishes our desire to continue serving the court.

Sometimes the mediators are perplexed about how to deal with a particular situation. Having a judge available for a quick consultation or reality check is invaluable.

To the Mediators

When you sign up to serve on a particular date, keep it open on your calendar. If you have a conflict, notify the court promptly.

If you don’t get all the mediation summaries at least 10 days before the scheduled session, call the ADR clerk and ask for assistance. It’s not the mediator’s role to call each attorney in the case (and possibly taint our neutral status.)

If the summaries are late or incomplete, consider further contact with the clerk’s office; in some cases, there is a need for judicial intervention.

Take the time to carefully read the summaries and understand not only any offers or demands, but the issues, concerns, and positions of each party. It’s the mediator’s role to ensure a level playing field so that the parties can conduct the mediation in an open and frank fashion with the intent of allowing them to settle the matter. Mediators don't determine the outcome. We merely provide the mechanism for the parties to achieve the result.

If the case doesn’t settle at the table, be sure to leave the door open for further discussion by the parties. Mediation hasn’t “failed” just because a stipulation isn’t signed at the session. Many difficult cases simply require a little time to achieve a settlement.

Bruce L. Dorner is a solo practitioner in Londonderry, NH. Contact him at Bruce@BruceDorner.com or visit his Web site at http://brucedorner.com. This article is adapted from a piece that ran in the October 2006 issue of the New Hampshire Bar News.

© Copyright 2009, American Bar Association.