A Mediator’s Perspective: A Peek Behind the Curtain - Before Mediation

(PART 1 OF A 3-PART SERIES)

After a mediator has been selected, the location of the mediation date has been determined (typically the mediator’s office), and a mediation date has been set, two current trends have developed that merit discussion:

  1. Postponement of the mediation session
  2. Not providing a confidential mediation statement

These two issues will be discussed in order.

1. Postponement of the Mediation: Make sure everyone is on the same page.

If all parties are in agreement to postponing the mediation session, no problem. The mediator will send out new dates and a new mediation date will be scheduled. Unfortunately, the growing trend is for one party to attempt to postpone the mediation session unilaterally without the agreement of all other parties. Emailing, texting, calling, or writing the mediator and asking him or her to cancel the mediation session without the agreement of all parties is not good practice. If one party wants to postpone mediation, that party should attempt to gain the consent of all other parties so the mediator knows all parties are in agreement before a mediation is rescheduled. If all parties cannot agree on postponing a mediation session that has been previously set, the mediator can get involved and attempt to “mediate” a new mediation date. If the parties still cannot agree to a new mediation date after the mediator’s involvement, the mediation will typically need to proceed forward as previously scheduled, absent an Order from the Court relieving the parties from the previously-scheduled mediation date.

2. Confidential Mediation Statements: They really help!

Another growing trend is for parties to not submit confidential mediation statements to the mediator prior to a mediation session. This puts the mediator in the disadvantageous position of not knowing anything about the dispute heading into a mediation session. Perhaps worse, if one party submits a confidential mediation statement and another side does not, the mediator gets a one-sided perspective. It is best if all parties submit a confidential mediation statement to the mediator a few days before mediation.

It is also very helpful to the mediator if the confidential mediation statement is well-organized and the client’s story is told in chronological order. In other words, the actual story behind the dispute itself may have started years before a lawsuit is filed. Telling the story in the order it occurred helps the mediator have a clear picture of the full nature of the dispute. Other important items to include in a confidential mediation statement include prior settlement negotiations between the parties, unrealistic client expectations, and any particular “likes” and/or “dislikes” of a particular party. Mediators are always looking for common ground to bond with the parties, and it is very helpful in a confidential mediation statement when we see comments like, “p.s. – My client loves horseback riding” or “p.s. – My client hates the Indianapolis Colts.” Also if large attachments are included with the statement, tab and highlight the important parts of the attachments.

In short, try and make sure everyone is on the same page before rescheduling a mediation session. And a few days before the mediation occurs, send to the mediator a well-organized confidential mediation statement tipping off the mediator to some common ground the mediator might find with your client. Following these two steps will help ensure that a mediation starts off as smoothly and efficiently as possible. 

About the Author: 

Mr. Fitzharris is a registered civil mediator, and a member of The National Academy of Distinguished Neutrals, and the Defense Trial Counsel of Indiana. With nearly thirty years of litigation experience, he has represented major litigants in numerous mediations, arbitrations, jury trials, and bench trials. He can be reached at (260) 423-8874. 

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