Mediation - Module 3 of 5

Module 3 - Mediation

What is Mediation?  

As explained by the Florida Court ADR System, mediation is “a way for people who are having a dispute to talk about their issues and concerns and to make decisions about the dispute with the help of another person.”[1] This third party is called a mediator and remains neutral through the mediation process. A mediator does not take either side in the dispute and typically does not tell the parties how to resolve their conflict. The point is for the participants to reach their own agreeable resolution for all or some of their concerns with guidance from the mediator.

While conflict resolution has been around since ancient times, the process of mediation became increasingly popular between World War I and World War II.[2] The threats of international conflicts, along with growing labor disputes domestically, pushed the necessity for more technical methods of conflict negotiation and management. In 1918, the U.S. Department of Labor created the U.S. Conciliation Service to mediate labor disputes. In 1947, Congress enacted the Labor-Management Relations Act (also called the Taft-Hartley Act). It included the Federal Mediation and Conciliation Service as an independent agency with the mission of “preventing or minimizing the impact of labor-management disputes on the free flow of commerce by providing mediation, conciliation and voluntary arbitration.”[3]

Since then, mediation has expanded from labor and international disputes to widespread usage in state and local court systems for all types of large and small disputes. Judges hope that mandated mediation will free up overly crowded dockets by helping conflicting parties settle their own differences outside of the courtroom. For example, the Florida code of civil procedure requires mediation in certain civil actions.[4] It even gives the courts the power to compel participation in mediation proceedings.

The United States District Courts for the Middle, Southern, and Northern Districts of Florida all include rules that mandate the referral of various cases to mediation.[5]  The 5th Circuit Court of Appeals has a court-mandated mediation program and the 11th Circuit has its own internal mediation program for disputes on appeal from the federal courts within its jurisdiction.[6] These types of mediation regulations are common across courts and states around the country.  

When Mediation is Appropriate

Not every dispute is appropriate for mediation. For this type of ADR to be effective, the conflict should have certain characteristics that make resolution more probable. A review of mediation referral practices by district judges in the United States District Court for the Eastern District of Missouri revealed some similarities in cases that are sent for mediation.[7] For example, all of them typically will refer more cases to mediation when there are factual disputes than when the questions center around legal interpretation. The review also showed that the judges tend to not make referrals for cases that involve appeals from administrative agency rulings. Bankruptcy appeals, Social Security matters and cases involving the civil rights of prisoners are also among those where mediation referrals are not commonly made.   

Cases that are most often sent to mediation include those involving domestic relations, workplace conflicts, contracts, land usage and financial dispute matters. These cases typically do not involve complex questions of law, making them more amenable to compromise and less likely to be settled in pre-trial motion practice in court. Another aspect of cases appropriate for mediation is mutuality. To increase the likelihood of success, each party must recognize the value of coming to a compromise and understand that a successful mediation entails collaboration to find a solution that benefits all parties.

The Mediator

The mediator is not there to judge the merit of either party’s stance. In most cases, the mediator also is not there to draw conclusions or decide on a resolution for the parties. As explained by US Equal Employment Opportunity Commission,” the mediator does not decide who is right or wrong or issue a decision. Instead, the mediator helps the parties work out their own solutions to problems.”[8] This neutral person is solely there to assist the parties through the mediation process.

While there is no single path to becoming a mediator, many court systems and colleges offer extensive training and certifications. For example, the Virginia state courts utilize the Guidelines for the Training and Certification of Court-Referred Mediators.[9] These rules set out the requirements for working as mediators within the Virginia courts.

Most such systems or rules requirements require a bachelor’s degree at a minimum, but there may be exceptions for people with extensive mediation training and experience. Courts also typically require potential mediators to work under a certified mediator for a specified time. In Virginia, applicants who want to mediate cases in the Juvenile and Domestic Relations District Courts must complete 40 hours of mediation training, including 20 hours of basic mediation training and 20 hours of family mediation training from a certified trainer.[10]

New York courts use local community mediation programs to train potential mediators.[11] Education and training requirements vary by court, mostly depending on the types of cases being mediated. For example, mediators in the commercial division must have extensive experience with business law.[12] The matrimonial courts require experience with domestic and family law, while mediators in the New York Supreme Courts (which are the trial courts in that state) must have experience in various practice areas, including personal injury law, contract law, and general civil matters.

Mediation Confidentiality  

One important aspect of successful mediation is confidentiality. For mediation to work, the parties must feel confident that the information they share will be held in the strictest of confidence. Otherwise, if they fear that their statements may later be disclosed in court, they may not feel free to fully participate in the proceedings. Mediators need candidness and truthfulness from the parties, and the assurance of confidentiality is one way to promote open communication.

Massachusetts law, for example, mandates the confidentiality of mediation proceedings.[13] It states, “All memoranda, and other work product prepared by a mediator and a mediator’s case files shall be confidential and not subject to disclosure in any judicial or administrative proceeding involving any of the parties to which such materials apply. Any communication made in the course of and relating to the subject matter of any mediation and which is made in the presence of such mediator by any participant, mediator or other person shall be a confidential communication and not subject to disclosure in any judicial or administrative proceeding…”

Confidentiality is one method of ensuring quality within a mediation proceeding, but many organizations and court systems have also established sets of ethical guidelines for mediators to follow. Though they all vary in the details, they are commonly set up to provide mediators with some guidance for appropriately conducting mediation proceedings.  

The Supreme Court of Texas adopted ethical guidelines aimed at establishing oversight for the quality of court-mandated mediations.[14] Its provisions include various clauses about mediation conduct. For example, mediators are warned against using information learned during mediation for personal gain. The guidelines also warn against placing the personal interests of the mediator above the interests of the parties in conflict. Mediator qualifications are also established in the guidelines, along with a requirement to disclose any conflicts of interest and parameters for mediation procedures.  

It’s also important to note that while these guidelines are meant to serve as a roadmap for mediators, they are not mandatory rules. In fact, the guidelines concede that these “rules are aspirational. Compliance with the rules depends primarily upon understanding and voluntary compliance, secondarily upon reinforcement by peer pressure and public opinion, and finally when necessary by enforcement by the courts, through their inherent powers and rules already in existence.”

Mediation Styles  

Most mediations follow a standard process. During the introduction, the mediator explains the process and relevant rules of mediation. The mediator then allows each party to make a statement, wherein they describe the dispute and present their arguments. In an effort to gain a better understanding of the conflict, the mediator may ask questions of each party. If necessary, the mediator may also hold private meetings with each to gain a better understanding of their perspective and identify areas for possible compromise. The mediator then takes all gathered information and walks the parties through negotiations, helping them reach compromises and come to a solution.

Once the mediation is complete, the mediator will create a written agreement, putting the details in writing for signatures by both parties. While some state courts uphold these written mediation agreements should the same dispute arise again, other states do not. So, under some circumstances, the enforceability of a mediation agreement is dependent on each party’s willingness to abide by it. 

To facilitate the process, mediators use various mediation styles to reach conflict resolutions. Facilitative mediation is the most commonly used form of mediation. It involves asking questions, normalizing the differing points of view, identifying similar interests and helping the parties consider possible resolution options.[15] The mediator typically includes all parties in joint sessions, so everyone can hear all points of view. There are no recommendations, opinions or predictions given. With facilitative mediation, the mediator controls the process and the parties solely control the outcome.

Evaluative mediation is a rarely used form of mediation that follows a process similar to a settlement conference.[16] Instead of withholding opinions about the conflict, an evaluative mediator points out weaknesses in the parties’ perspectives to help convince the parties to reach a resolution. The mediator may also predict what the court might decide and make an informal recommendation based on her interpretation of the applicable law. Due to the legal evaluations involved in this type of mediation, evaluative mediators are usually attorneys.   

The process of evaluative mediation differs from facilitative in that the mediator is not solely concerned with the structure of the mediation.[17] The evaluative mediator can also influence the conflict outcome. Parties often meet with the facilitator separately, so the mediator can help each party and its counsel evaluate the cost benefit of taking the case to court. Evaluative mediation is more common when mediation is mandated by the court. The attorneys are often consulted in choosing the mediator and actively participate in the process.

Transformative mediation emerged in the 1990s as an innovative new form of mediation.[18] It is very similar to traditional facilitative mediation, in that the mediator centers on the process and not the outcome. It drives empowerment of the parties and recognition of the other parties’ interests and perspectives. The theory behind transformative mediation is that all participants can be transformed by the mediation process. All parties are included in all meetings with the transformative mediator, who encourages peaceful interactions. As explained by the National Association for Community Mediation, “In transformative mediation, the parties structure both the process and the outcome of mediation, and the mediator follows their lead.”

What distinguishes transformative mediation from facilitative mediation are the sometimes-subtle methods used by the mediators.[19] The mediator focused on assisting the parties to improve the “quality of their interactions” with the other parties and to increase their “openness or responsiveness” to the other parties. [20]

There are strong feelings within the mediation profession about which methods of mediation are most appropriate and effective. Some mediators argue that evaluative and transformative mediation take too long and achieve lower percentages of positive outcomes. There is also concern that these resolutions may not be fair, with stronger parties asserting their interests to the detriment of weaker participants.  

Supporters of evaluative mediation argue that it’s the method most preferred by parties given an opportunity to choose.[21] They assert that parties want a final outcome should negotiation efforts fail, and they also want to feel confident that the outcome is fair. Opponents of evaluative mediation argue that it is actually the method preferred by attorneys - who are more comfortable with settlement conferences and legal analyses - and not the conflicting parties. Opponents also worry that these mediators’ evaluations may be incorrect.

Mediation Bodies and Associations

While there is no national governing board for mediators, there are several associations that offer membership, continuous training and credentialing. The National Association of Certified Mediators provides “a category of Professional Mediators with the basic academic credentials necessary to provide the general population with excellent mediation services.”[22] They offer a 30-day certification course for people seeking mediation credentials.

The American Arbitration Association also includes mediators. The organization maintains a database of vetted mediators, comprised of judges and other leaders from the business and legal communities.[23] These members are required to adhere to the Mediators Model Standards of Conduct, which was developed through a collaboration of American Arbitration Association, the American Bar Association and the Association for Conflict Resolution. The American Arbitration Association also maintains a Master Mediator Panel that is trained to handle large-claim dispute mediations.  

There are also numerous state mediation associations. The Texas Association of Mediators is a statewide network of mediators, providing education leadership for mediators within the state of Texas.[24] The organization also hosts an annual conference, where dispute resolution professionals of national and international renown are brought in to present and conduct trainings.

The Southern California Mediation Association has a mission “to promote mediation, excellence in the practice of mediation, and community awareness of the mediation process through education, dialogue, and outreach.”[25] The organization aids the Los Angeles Superior Court, helping to resolve the court’s extensive volume of cases by shortening case duration and promoting citizen satisfaction with the courts.  

For mediators seeking to work within the government, there are numerous federal options. The National Mediation Board is a federal government agency that “facilitates labor-management relations within the nation’s railroad and airline industries.”[26] Established in 1934, it uses mediation to protect the continuation of interstate commerce during labor – management disputes.  

The ADA Mediation Program is managed through the US Department of Justice. This program utilized mediation styles to settle disputes under the Americans with Disabilities Act.[27] The mediators in this program are professionals, generally holding college degrees and training in the complex legalities of the ADA.

The Federal Mediation & Conciliation Service is an independent organization that provides mediation services to private and public agencies throughout the United States. The organization includes the Office of Education and Training, which supports and drives a continuous learning environment for mediators.

            In our next module, we’ll turn to the most formal method of ADR – arbitration- and discuss how this is the truest alternative to litigation that can save litigations time and money and improve judicial economy.