Debunking Mediation Myths       
by Steven H. Kruis, Esq.

Myth No. 1: All Mediations are the same -- One Size Fits All.

There are at least three types of mediation models: the facilitative, the evaluative, and the hybrid. Under the facilitative model, the purist mediator works toward finding creative solutions that meet the interests and needs of both sides, ascribing relatively little importance to the legal rights of the parties. The best cases for the facilitative model are those more about hurt feelings and anger than money. The mediator is a facilitator, not an evaluator. The purist mediator would say most of his/her disputes are not about money, and (s)he expresses no opinion about either party's position in the case. Under the evaluative model - on the other end of the spectrum - the mediator analyzes the case and tells the parties what (s)he thinks it is worth. The mediator attempts to convince both counsel and their clients that his/her evaluation is right. The process is solely about money; the emotional aspect of the case is largely irrelevant. The mediator may not even talk to the parties. This model closely resembles a judicial settlement conference, and the neutral is sometimes referred to as a "muscle mediator".

Under the hybrid model, in the middle of the spectrum, the mediator, a skilled facilitator with a legal background, shares neutral impressions with the parties to help them evaluate their case. Instead of assigning a value to the case and prevailing upon the two sides to agree with the mediator, the hybrid model mediator attempts to get the two parties to agree with each other regarding the settlement of the case.  The hybrid model is usually most conducive to settling the types of disputes civil litigators handle. There is emotion is virtually all litigation, whether it involves personal injury, real property, employment, or business matters. Emotions must be addressed before the parties can get down to the important business of negotiating a settlement. If ignored, the emotional baggage hinders settlement. However, civil litigation is often ultimately about the dollars, which will change hands following a settlement.

Not all mediators follow the same model, so not all mediations are the same. Mediators are stylistically different and at different points along the spectrum. In selecting the appropriate model (and mediator), the litigator should consider the model that is best for the lawyer and client in light of the personalities involved and subject matter of the dispute. The mediator will ordinarily provide references to lawyers who have used the mediator and can tell you about his/her style.

Myth No. 2: Certain Types of Cases Cannot Be Mediated.

All types of cases can be mediated. The subject matter and amount in controversy are generally irrelevant. The real question is one of timing - is the case ripe for mediation? Do you have enough information to negotiate intelligently? For example, in a personal injury case, the parties need to know enough to address liability, causation, and damages. In a real estate non-disclosure case, the parties should know about proposed methods and costs of repair, i.e., damages, in addition to facts establishing and refuting liability.

Myth No. 3: Ex Parte Communication before the Mediation Is Improper.

The ex parte rules that apply in judicial proceedings and arbitration do not apply in mediation, because the mediator cannot impose a decision on the parties. Rather, the mediator assists the parties in resolving the dispute. The more information the mediator obtains, the greater the likelihood of settlement. After the joint session, the mediator will meet privately with each side in "caucuses" that are, essentially, ex parte communications. Caucusing can begin before the mediation, and attorneys should feel comfortable calling a prospective mediator to determine if (s)he is appropriate to mediate the case.

Myth No. 4: When the Case Has Not Settled at the Conclusion of the Mediation Session, the Parties Proceed to Litigation.

Most cases that go to mediation will settle. Some of those cases, however, may require additional effort after the formal mediation session has ended. Mediation is an ongoing process. Although progress towards settlement may come to a standstill on a particular day, future settlement is still possible. If the potential for settlement exists, the determined mediator will continue his/her efforts. Evidence Code section 1125 recognizes the reality that some cases need the extra effort after mediation, and makes post-mediation discussions inadmissible. A good mediator is the last one to give up on settlement. His or her tenacity will result in an agreement most of the time.

Biography     

Steven H. Kruis graduated with honors from the University of Notre Dame in 1977. Selected as a 1978-79 Rotary International Scholar, he studied in London, England, and subsequently received his Juris Doctor degree from the Notre Dame Law School in 1980.  Since 1997, he has been affiliated with Markus ♦ Kruis ♦ Mediation and serves as a full-time neutral mediating real property, employment, injury, and other disputes throughout Southern California.

Author's Website: http://www.agreement.com