Bringing Mediation Home Lynn P Cohn Explaining Mediation

Bringing Mediation Home Lynn P. Cohn

Explaining Mediation is: § voluntary § a private process in which a neutral party helps people resolve disputes § getting two or more emotional people with a problem to talk with each other

Explaining Mediation is not: § making decisions for disputants § free discovery for an inevitable arbitration

Explaining Mediation Key Features of Mediation Process § Voluntary ü Parties decide to enter the mediation process ü Parties can leave the mediation process at any time ü Parties decide on the outcome of the dispute

Explaining Mediation Key Features of Mediation Process § Neutral, impartial mediator shall: ü only mediate matters in which she/he can remain impartial ü disclose conflicts of interests; following disclosure, may continue if parties agree ü honor the principle of self-determination

Explaining Mediation Key Features of Mediation Process § Confidential ü It is a confidential settlement process. ü Neither the mediator nor the parties shall disclose the communications/conduct of the mediation, unless all parties agree (with limited exceptions).

Explaining Mediation Why Mediation Works § § § Quick Low cost Flexible process Maintains/improves relationships Gets parties to come together/talk

Explaining Mediation Why Mediation Works § Improves poor communication/resolves misunderstanding § Discovers/addresses the true interests of parties § Moves beyond different views of law/fact § Allows creative solutions beyond win/lose § Disputes settle § Parties do not give up right to arbitrate

Explaining Mediation When Mediation Will Not Work § § Precedent desired No relationship and cheaper to contest the claim Vindication/punishment remains main objective Jackpot syndrome (maximize/minimize recovery)

Explaining Mediation Versus Arbitration § Mediation and arbitration are private § Mediation and arbitration both involve the assistance of a trained neutral § Mediation is cheaper than arbitration § Mediation is faster than arbitration § Mediation offers a wide range of solutions, unlike arbitration

Explaining Mediation Versus Arbitration § Mediation allows parties to control the outcome, unlike arbitration § Mediation may maintain/improve the relationship, unlike arbitration § Arbitration ensures certain closure, unlike mediation

Selling Parties On Mediation § § Explain the process at their level. Find out what the concern is, and address it. Explain options if case does not settle. If available, offer data about success/satisfaction. § Give a hesitant party some (but not too much) time. § Let them decide.

Establishing a Panel of Mediators Select mediators based on: § skill with mediation process § substantive knowledge § reputation for fairness

Establishing a Panel of Mediators Key Components of a Mediator Training Program § § § Mediation demonstration Simulations, simulations! Communication skills Negotiation skills Mediation strategies

Establishing a Panel of Mediators Key Components of a Mediator Training Program § § Ethical concerns Feedback Procuring cause Opportunities to refresh skills over time

Establishing a Panel of Mediators Alternatives to Setting Up Own Training § Send students to general mediation skills training § Connect to mediation panels for court programs

Materials § Model § Training manual § Forms § Disk

Data Collection § Quality control surveys § Database § Report to NAR