Lawyers regularly use alternative dispute resolution methods to avoid trial. Mediation may be the most common.
Mediation has its own vocabulary. Lawyers who know it can best manage the process to produce the optimum result.
Specialized Terms for a Unique Procedure
Getting everyone to the table is called convening. Attorneys can manage this themselves, or they can turn to the mediator for help. Sometimes getting everyone to agree to talk about settlement is as challenging as bringing them to settlement.
Once a mediation starts, it typically begins with a joint session with every participant in the same room. In the past, initial joint sessions often included opening statements, but now many mediators and litigators avoid opening statements. The tone is adversarial and starts everything off the wrong way for a process geared for compromise. Today, the initial joint session is more likely to cover preliminary stuff like introductions, meal breaks and where are the toilets.
Initial joint sessions also include information about confidentiality. Mediation confidentiality is protected in every jurisdiction. The applicable rules and case law define whether it is a privilege or an evidentiary exclusion. Mediation confidentiality provides that information disclosed solely at mediation cannot be used in any other civil forum, and the mediator cannot be subpoenaed for this information. Confidentiality allows parties to be candid about the weaknesses as well as the strengths of their case. Participants usually sign a confidentiality agreement before any meaningful information is exchanged.
Mediation can continue in joint session, or break up into caucuses. In caucus, only one side or one party’s attendees meet privately with the mediator. This is where the confidential information comes out. Participants may reconvene in joint session for purposes such as collaborative brainstorming, to hash out a legal point or to document their agreement.
To help parties negotiate, the mediator engages with participants in caucus and then acts as a communication conduit, a process sometimes called shuttle diplomacy. The mediator physically moves between rooms, or parties may alternate coming into one mediation room. During shuttle diplomacy, the mediator may reframe the message to filter out anger or irrelevancies.
Getting Very Near the End
As negotiations near resolution, but nobody is willing to make one more step to conclude the deal, the mediator may suggest a mediator’s proposal. Neither party has made this offer; it is the mediator’s idea of what it takes to settle the case. Each party’s private response to the settlement proposal is secret unless everyone agrees. This technique can help preserve an attorney-client relationship. Rather than the attorney suggesting that the reluctant client make further concessions, it’s that darn mediator. If only one side agrees to the proposal, the other side never learns about that agreement; the parties’ last communicated offers still define their positions.
If parties can not agree, the mediator will declare an impasse. If parties have agreed, rather than a final settlement agreement, a mediation often ends with a stipulation of agreement or memorandum of understanding on the major points. Attorneys hammer out the details in the days immediately following the mediation.
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