MY APPROACH TO MEDIATION

>MEDIATION is an agreed collaborative effort and an evolving process. At the outset, mediation strives for an open and forthright dialog among the Parties, Attorneys and Mediators to develop a settlement "agreement" (a contract or "meeting of the minds") that represents the best possible outcomes for the Parties. The purpose is to help the Parties make final decisions to resolve their problem or dispute. (Mediation is distinct from arbitration where a designated person(s) usually decides the matter after hearing both sides in accordance with specific arbitration rules.)

>THE MEDIATOR is an impartial third person who administers the process by encouraging communication, by identifying the context of the problem together with the needs and interests of the Parties, and by helping to generate potential solutions - all in a balanced manner. Mediators assist the Parties in reaching their own decisions; not taking sides or making decisions for them. While the Mediator is familiar with the relevant legal issues and has a responsibility to make sure that each party is aware of them, he/she does not give legal advice. The Mediator does not represent either or both of the Parties. The Mediator is responsible to assess the capacity of the Parties to determine if mediation is appropriate for them at the outset and/or during the course of the mediation. (Co-mediators are appropriate in some cases such as complex commercial contract claims, community disputes, and where different substantive expertise would be helpful.)

>MEDIATION METHODOLOGIES AND APPROACH. The spectrum of ways to carry out mediation include: the Evaluative Method (e.g., where the Mediator may offer some evaluation as to the positions of the Parties), the Facilitative Method (e.g., where the Mediator guides the Parties to a solution of their own making) and the Transformative Method (e.g., where the Mediator tries to empower the Parties to transform their entire attitude towards their respective needs and interests underlying their problem or dispute).

I believe, to quote the second UN Secretary General, Dag Hammarskjold, a Mediator must be "neutral, but not neuter".Thus, I advocate adapting the method to the particular case and applying more than one method in each case as the circumstances evolve. Mediation is an evolving process requiring a combination of methods. No two cases are identical. Unexpected ideas for solutions are to be continually fostered.

But, choosing a methodology requires something more - a practical understanding of human interactions and related foundation principles. I believe Mahatama Gandhi, a lawyer, identified two crucial principles that apply to most situations and can be a guide for Mediators to help solve historic political problems as well as personal family, commercial or specialized disputes, even complex construction contract claims. The first principle involves seeking the "force of truth" (Satyagraha) to understand the underlying issues. Yet, once the truth(s) is/are clearly perceived, the Parties need to reach a fair and just agreement (a "contract") that would not result in harm towards any person (non-violence or Ahimsa). These universal principles do not ignore that solutions will require painful compromises and sometimes, significant settlement "costs" to the Parties. Such principles are an essential foundation for the commitment needed by all in agreeing to use mediation to resolve their particular problem or dispute.

>THE ATTORNEYS, in Court related mediation, are legal counselors, not "gladiators". They are essential to enhance the mediation process, as they can add significantly to a Party's ability to see the reality of the overall context into which the dispute fits. Attorneys are responsible to ensure that the Parties are completely informed about all of the legal issues as well as the advantages / disadvantages/ costs of litigation and mediation. Initially, it is important for each Party to be advised about his/ her rights and obligations and to have an idea about the probable outcomes and costs if the decisions were to be made by the Court. Mediation is not a substitute for the benefit of independent legal advice. Nevertheless, not all situations require direct involvement of Attorneys. Although Attorneys may attend the initial orientation session, they should not generally attend every mediation session. In some situations, as the mediation proceeds, specific legal questions may arise which need to be discussed with the Attorneys before further mediation. When necessary, arrangements may be made for the Attorneys to attend a particular session and/or be available for telephone consultation during a mediation session. If appropriate, the Mediator and Attorneys may communicate directly as and when necessary. (The recent development of the alternative approach of "Collaborative Law" can mean that the Attorneys agree never to represent the Parties in any future proceeding concerning the matter at hand, but rather only assist and counsel them in the instant mediation. Thus, settlement becomes the main focus.)

>INITIAL PROCEDURES FOR COMMENCING MEDIATION are discussed at the first orientation session and confirmed by an Agreement to Mediate. (A preliminary telephone conference call with the Mediator may be advantageous.) The mediation normally begins with a joint session with all the Parties, followed by caucus sessions with each Party, then back to the joint session. Caucus and joint sessions are repeated as deemed appropriate by the Mediator.

>THE COSTS OF MEDIATION are indicated by the Mediator in advance of commencing the mediation, together with the Agreement to Mediate. Fees normally vary according to the nature and complexity of the case. Usually the total expenses are significantly less costly in time, money and emotional strain than proceeding ahead to Court action on the "litigation train" that is sometimes unpredictable and not easily stopped.

>WHEN A TENTATIVE AGREEMENT IS REACHED, the Mediator will determine a procedure for drafting a Memorandum of Understanding (MOU) or other settlement arrangement. This will be given to the Attorneys for the Parties, or to a Party directly if he or she is not represented. Each Party should review the MOU outside the pressure of a mediation session before it is finalized. The Attorneys for the Parties may prepare the final settlement agreement and/ or attend the final mediation session. In Court situations, the MOU is filed for enforcement according to its terms.

>CONFIDENTIALITY. Except as may be provided in applicable statutory law, an Agreement to Mediate should specify that nothing contained in the MOU, or in any aspect of the mediation shall be admissible as evidence in or otherwise be subject to any legal proceeding of any nature against either Party, their respective Attorneys, the Mediator, or any other person connected in any way with the mediation. To this end, the mediation shall remain strictly confidential.

Finally, the Mediator's integrity is crucial. He or she must be diligent to remain neutral, impartial and balanced towards all throughout the mediation.

Roles of the Mediator, Attorneys and Parties