By James B. Angell
The 10 Commandments of Mediation
As a mediator, I developed the following 10 Commandments of Mediation that I apply in my mediation practice:
- As a mediator, I will be prepared. A prepared mediator should know the facts of the case and the law relating to the case so that he or she can help the lawyers and clients analyze the strengths and weaknesses of their positions both as to the law and as to evidentiary issues. I will prepare for your mediation so that I can intelligently and thoughtfully address the issues presented.
- As a mediator, I will be impartial. Although I represent my clients zealously as a lawyer, as a mediator, I play a different role. A good mediator should challenge each party as to the weaknesses of its case, but should avoid identifying weaknesses of a party’s case to an opposing party. Although I may challenge your client, I will not provide assistance to either party in the litigation by suggesting helpful theories or factual issues that the party has not previously considered.
- As a mediator, I will be circumspect. Although a mediator should question the factual and legal positions of each side to point out weaknesses in a party’s case, this is sometimes best done discretely with the party’s attorney to avoid undermining the confidence that a client has in the attorney.
- As a mediator, I will be facilitative. I will not judge a situation and push the parties toward a specific outcome. A mediator’s role is to facilitate the parties reaching a settlement on their terms and to provide each party with reasons why he or she should settle.
- As a mediator, I will be professional. As a trustee and lawyer, I know to treat every person with respect and deference. This is particularly true in mediation.
- As a mediator, I will be patient and receptive. Mediation is not only a negotiation process, but it can be a psychological process as well – settlement involves “giving up the fight”, which may require a party to divest him or herself of the emotional weight of the battle. I will give each party time to talk out their frustration with the other party, the case, the legal process, etc. so that his or her identification with a legal position can give way to realistic negotiations. As a mediator, I will listen and give the parties the opportunity to vent so that their emotional commitment to the case can be dissipated.
- As a mediator, I will do my best to determine what each party wants. Sometimes the most difficult thing for lawyers to do is to determine exactly what a client wants from a lawsuit. Although most disputes involve money, they can also be about other things as well, such as respect, a sense of justice, fear of dominance, or even hurt feelings. Cases do not generally settle until it is clear what each party wants from the settlement. A good mediator is receptive to information conveyed by the attorneys and the parties and should seek to determine what each party wants from a settlement in order to suggest solutions.
- As a mediator, I will be creative. A mediator should be in a position to suggest conventional and nonconventional settlement solutions to counsel.
- As a mediator, I will be firm. Mediation is more than simply wearing out carpet between conference rooms and urging parties to put the dispute behind them. It involves listening, allowing parties to vent their frustrations and patience on the part of all involved. It does not work to convene a mediation while giving either party the option of walking out – denying the opposing party success at mediation can be a litigation tactic toward conveying the resolve of a party in its position or domination. A mediator must be firm in requiring parties to mediate. I have attended several mediations that lasted until the wee hours of the morning, and settled. It’s important to keep the parties in mediation as long as there is any reasonable likelihood of settlement to avoid disrupting the process and losing ground.
- As a mediator, I will be detailed. If a mediation results in a settlement, the mediator should insist that the parties address the details of the settlement to reach a complete agreement to avoid the risk of the settlement unraveling.
James B. Angell can be obtained as a mediator and can be reached via email firstname.lastname@example.org or by phone 919-821-7700. Please visit our website at www.howardstallings.com for more information on James B. Angell.