The client, faced with an impending mediation session, requires a careful explanation of the process, particularly the role she or he is to have as well as those of the mediator and counsel.
Mediation is a dispute resolution process that may be carried out in a number of different models or configurations, among which, and perhaps the most used, are the facilitative style and the evaluative style or a combination of both. In the facilitative style the mediator assists the participants to reach their own mutual decision to settle their dispute. The style of the evaluative mediator is to provide an opinion of settlement value or other disposition of the dispute- a style that is tantamount to that employed by a pro tem settlement conference judge in the California court system. In addition, “distributive, integrative, therapeutic, narrative and transformative” styles are among some of the others in vogue but are beyond the parameters of this overview that focuses on the facilitative mediation process, one of those in which clients are most likely to participate. Participation in the facilitative process is consensual, the disputants having agreed to participate and make a good faith effort to resolve their differences.
The mediator’s role is to facilitate a settlement agreement between the parties by assisting each party to understand the positions of their opponent, to analyze their own positions and to modify those that are unrealistic. The mediator’s goal is to bring the negotiations of the parties to a point at which settlement is achieved. The mediator, however is not a substitute for a judge and has no decision making authority; is not a negotiator, the role of whom is to negotiate the best result possible for her or his client; and does not act as an attorney or give legal advice as, for example, does not suggest to the parties what a judge might hold with respect to issues but can quite properly, in an effort to get the parties to change a position, ask of them or their counsel that which she or he believes a judge might hold.
Counsel for each party should present the client’s case in a straightforward manner and not in a confrontational manner as may be employed in court. The effort should be to present information helpful to persuade the opponent that settlement is a better option than going to trial. Some attorneys use “trial advocacy” in mediation but by and large this is counter-productive.
Submission of written briefs to the mediator before the commencement of the proceeding is helpful to assist the mediator and educate the other party. Counsel often prefer to submit confidential briefs. This is entirely appropriate if counsel so choose. The critical point is that the dispute cannot be resolved unless each party has a full understanding of the arguments and interests of the other and the opportunity to evaluate their merits.
Counsel should carefully prepare the client for the mediation so that she or he will have an appreciation of the costs and risks in litigating the dispute, be patient with the process, have possible concessions in mind and be able to maintain an open mind, taking into account the interests of the other side and focusing on settlement in an objective manner. Counsel must assure the presence of someone with full settlement authority at the mediation session. Mediations “aft go awry” in the absence of someone with such authority.
While currently there is some opposition to an opening session in which all parties and counsel participate, most agree that the opening session serves a very important, effective and helpful part of the mediation process. Here the mediator, counsel and parties have the opportunity to introduce themselves, and the mediator can outline the ground rules for the proceeding and assure the parties and counsel of her or his neutrality. Most importantly each side has the opportunity to address the other party in a non-argumentative manner to explain critical positions and interests important to that party. In this way, the session then can focus on finding solutions in an objective manner and, with help of the mediator, formulate solutions that will accommodate the interests and satisfy the needs of all parties so as to bring the negotiations to the point at which closure and a settlement agreement are achieved. Some mediators prefer to permit the parties to address each other in the opening session; however, the risk in doing so is that if the parties become highly emotional and confrontational in doing so, the entire process may be endangered. The mediator can minimize this risk by asking questions of parties in opening session and encouraging counsel to do so as well. When the mediator is certain that the facts, issues and interests have been as fully discussed as need be, he adjourns the open meeting and separates each side into private caucus rooms where she or he may confer privately with each side.
In private caucus the mediator again will assure each side that the confidentiality of information disclosed to her or him will be maintained and not disclosed to the other side unless given express permission to do so. Maintaining confidentiality is critical to the process, because it provides a setting in which the party can be open with the mediator. Key to the success of a mediation is that all sides understand the interests and positions of the others so that the door is open for all sides to devise meaningful ways in which to satisfy the needs of the others and, thus, forge solutions and achieve closure and a settlement acceptable to all sides. Often there are emotions involved giving rise to concerns that may stand in the way of settling the dispute. The mediator must see that the parties recognize and dispel these emotions so that they can consider resolution of the controversy logically and in a manner that is conducive to settlement. When the parties accept the mediator’s assurances of neutrality, the mediator is better able to obtain information regarding the parties’ interests in order to define their weaknesses, help the parties understand where the other sides are coming from and formulate settlement strategy. At this point in the process, the mediator employs “shuttle diplomacy,” moving back and forth between the caucuses, imparting and gaining information until the point at which offers and counteroffers of settlement are formulated, delivered back and forth and an acceptable offer is achieved.
When the private caucuses have concluded and terms of settlement achieved, the parties and counsel most often reconvene with the mediator to confirm their settlement agreement in open session, unless there is lingering animosity that could threaten the settlement in which case the mediator convenes separately with each side to do so. At this point in the process, in order to avoid next morning “buyer’s remorse,” it is imperative that the agreement be reduced to writing by counsel and signed by the parties before adjournment of the session, If an action involving the matter in dispute is pending in the California court system at the time of the execution of the agreement, it is prudent and advisable that counsel insert an express provision in the agreement providing that enforcement of the agreement may be sought by either party by motion to the court pursuant to California Code of Civil Procedure section 664.6 and also providing an express request that the court retain jurisdiction over the parties to enforce the settlement until performance in full of its terms. If such an action is not pending, then it is prudent and advisable in any dispute over which the California Court system has jurisdiction over the parties and the subject matter of the dispute or over which counsel for the parties determine that it is prudent and advisable that the California court system have jurisdiction over the parties and the subject matter of the dispute, that counsel expressly include a provision in the agreement that should any party to it refuse to perform, any other party to it may file an action in the California Superior Court (specifying the County), seeking performance of its terms, serve such action on the non-performing party and file and serve a motion to enforce it pursuant to the aforesaid California Code of Civil Procedure Section 664.6. Whether or not an action is pending in California and the California court system has, or the parties and counsel desire that it have jurisdiction over the parties and the subject matter of the dispute, it is prudent and advisable also to insert language in the agreement conforming to any one or more of the conditions enumerated in California Evidence Code Section 1123, subdivisions (a), (b) or (c) so as to assure its admissibility in any proceeding relating to the mediation and settlement.