NCJ Number
102928
Journal
Negotiation Journal Volume: 2 Issue: 4 Dated: (October 1986) Pages: 345-350
Date Published
1986
Length
6 pages
Annotation
This paper describes the author's procedures in mediating court-referred cases and some of the risks in having the mediator assume the arbitrator's role in the event mediation fails.
Abstract
Mediation fees are set by the referring court, and should one party refuse to pay a portion of the fee, this may have implications for that party's commitment to the mediation process. Two ground rules for the mediation are that all communications from one party to the mediator without the other party present are confidential, and communications between the parties and the mediator will not be communicated to the judge. Following a joint orientation and educational meeting, mediation proceeds with a series of meetings. Some are joint meetings, others with separate parties, some with counsel only, and others with clients only. The goal of the meetings is to assist the parties in reaching a mutually acceptable settlement that accommodates the vital interests of each and is viewed by each as preferable to the costs and risks of litigation. The mediator generally does not provide legal advice nor focus on legal issues, since this tends to project the mediation sessions into an unfruitful discussion of win-lose legal positions. Although it is expedient for a mediator to assume the role of arbitrator should mediation efforts fail, this is a risky policy. Knowing that the mediator may become the arbitrator, the parties may not be frank in mediation sessions, and some of the information provided in mediation may bias the mediator in an arbitration decision. 3 notes and 3 references.