On demand 1h 3m 31s Basic

Basics of Mediation

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Basics of Mediation

In this program, attorney Jeanann Khalife, will provide a detailed overview of the mediation process. This course will examine the key features of mediation, the three primary mediation styles, and multiple tools and techniques useful in a mediation. We will also analyze the duties of a mediator and walk through the stages of mediation. In closing, we will address mediation agreements and their key elements.

Transcript

Hello, everybody. My name is Jeanann Khalife. I'm an attorney and mediator located in Southern California. The goal of today's presentation is to introduce you to a method of alternative dispute resolution, which is mediation. We will be exploring mediation from the perspective of a mediator. This will give us insight on the process for those interested in adding mediation as a practice area to their firms. So what is mediation? Mediation is defined as a process. So what is mediation? Mediation is defined as a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement. This definition was derived from the California Evidence Code Section 1115. Although this is from the California Evidence code, the definition of mediation is uniform across all jurisdictions. For example, the American Arbitration Association defines mediation as a process in which an impartial third party facilitates communication and negotiation and promotes voluntary decision making by the parties to the dispute. So let's take a look at the overview of mediation. It is a form of ADR. Mediation is the most commonly used form of ADR in the world, and it can be used to solve disputes in matters such as civil disputes. Complex civil disputes, commercial disputes, family law matters, and cross-border disputes. I'd like to define the differences between these categories for you. So civil disputes are disputes where private individuals or companies sue each other, such as in a breach of contract or torts claim. Complex civil dispute issues may include environmental law related disputes, antitrust law and malpractice issues. Commercial disputes result from from issues surrounding transactions or tangible products like goods. And family law matters include divorce, paternity cases, child custody support issues, and division of assets and debt. Cross-border disputes are usually issues that involve international law. And so in one type of these cases could be resolved through the mediation platform. The success of the approach to mediation depends on several factors, including the jurisdiction where it will be held, the governing law, culture and the complexity of issues. Even with its widespread use and popularity, mediation is not regulated by a body of law or entity that provides oversight over the practice of mediation. So let's compare it to attorneys and the law. Individuals that practice the law are bound by the state bars, or if you practice on a federal level, a federal bar association that regulates your ability to have a license to practice in mediation, there is no overarching organization that you have to subscribe to in order to be able to mediate. So because of that, it is within the discretion of a jurisdiction to provide rules of guidance on the topic of mediation. The federal courts, for example, the federal courts have established the Alternative Dispute Resolution Act. This act requires the courts at the federal level to establish alternative dispute resolution programs. Another example is internationally, there is the Singapore Convention on Mediation, which established guidelines on cross-border disputes and the implementation on solving such disputes through mediation. The United States is a signatory to this convention, and in California we have a general dispute Resolution act. It's called the California Dispute Resolution Program Act. Furthermore, California Family Code Section 3170 requires all courts to provide a mediator in relation to child custody issues. So if you ever hear anybody say that they are attending mediation or a court ordered mediation, it's typically through this California Family Code Section 3170. Specifically for California family law cases. Also, there is the Uniform Mediation Act. It's it is put together by the National Conference of Commissioners on uniform state laws, and it has been adopted by many states where it creates uniform rules of conduct for mediation and mediators. Now, not all states have adopted this, the Uniform Mediation Act. Georgia has been the newest state to adopt it. But other states that had have adopted it are Hawaii, Idaho. South Dakota. Vermont. Utah, Ohio, Washington, New Jersey. Iowa. Illinois. Nebraska. And the District of Columbia. There are three primary cornerstones for mediation, and it's really important to understand them because they form the essence of the practice of mediation. So the key features of mediation are its flexibility, its voluntary nature and the confidentiality that is implied or imposed, you could say, in the mediation process. When we are speaking about flexibility and mediation, we are speaking about the approach to mediation. There is not one form of mediation or one approach to mediation. The approach to mediation may vary depending on the jurisdiction, culture, issue, issue at hand, applicable law and level of complexity. So now we're talking about the voluntary nature of mediation. Although it's voluntary, there are instances where mediation is mandated either through a through the court order or via stipulation of the parties. So court mandated mediation is where the court requires the parties to participate in mediation prior to trial. This, however, does not mean that the court can force the parties to reach a settlement or an agreement in mediation. It just means that the parties can be obliged to attempt to resolve their issues in mediation. Court mandated mediation is where the court requires the parties to participate in mediation prior to trial. This, however, does not mean that the court can force the parties to settle in mediation. It just means that the parties may be obliged to attempt to resolve their issues in mediation. First, the court may mandate the parties to attend mediation through a private. Firm or hire a private organization such as jams to to conduct the mediation or to partake in a court mediation program program which I call institutional mediation. There are nuances when it comes to court mandated mediations. For example, in California, the court's ability to mandate mediation is limited to cases where the amount in dispute is over 50,000. So if a case is has an amount in dispute over $50,000, the court no longer has the ability to mandate mediation. Court ordered mediation may be limited depending on the jurisdiction. For example, in Delaware and in New York, The lack of effort of the parties to participate in mandated mediation will result in sanctions to the violating party. So we've talked about court mandated mediation. Now we're going to talk about stipulation of the parties. It is not uncommon for contracts to to include an arbitration or mediation clause where the parties are required to attempt to resolve their dispute via mediation before going through litigation. These contracts can be for services, products, home purchases, basically anything. Even if you go to a doctor's office, there's typically an arbitration or mediation clause in the service agreement for if for seeing the doctor in case there's a dispute between you and your doctor. Also, the parties can stipulate at any point during their dispute to attempt to resolve their issues via mediation. So although there isn't a pre agreed term in a contract, they can still agree to try to resolve their issues via mediation. Confidentiality. Confidentiality is one of the key factors to mediations mediation proceedings. Proceedings are expressly confidential. In fact, jurisdictions across the board agree on the confidential nature of mediation and have enacted express laws to define confidentiality. So, for example. The the federal rules of evidence, Section 408 govern what is confidential in mediation, and it prohibits use of evidence. Meaning what the statute is saying is that anything of the following which I will read is not admissible and cannot be used in the court of law if it was presented via a mediation process. So you cannot use evidence that was presented in mediation to either prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction. The confidentiality rule also applies to. Furnishing, promising or offering or accepting a valuable consideration in compromising or attempting to compromise on the claim. And confidentiality applies to conduct or a statement made during the compromise negotiations about the claim. So the strict nature of confidentiality is extremely crucial to observe and to maintain throughout the mediation process. And thereafter. California Evidence Code Section 1119 also states that no evidence of anything said or any admission made for the purposes of or in the course of or pursuant to a mediation or a mediation consultation, it admissible or subject to discovery and disclosures of the evidence shall not be compelled. This applies to any writings that were prepared for the purposes of mediation. In all communications negotiations or settlement discussions are as well protected through the confidentiality of the California evidence code. So it's a broad categorization when it comes to confidentiality. So earlier we talked about flexibility when it came to mediation, and that refers to the approach to mediation or what are known as mediation styles. There are three primary mediation styles facilitative, evaluative and transformative. The choice of which mediation style can affect the outcome of a mediation. And in order to become a skilled mediator, it is important to learn the different mediation styles and to understand which disputes they will work well with. You have to tailor what approach or what style you use based on what the issue at hand is. Now, a recent articles and studies have said there are new methods of mediation. To some they consider them as styles. But for me it's just. And a new approach to solving a dispute. And some of these are considered court mandated mediations, which we had discussed earlier, virtual mediation, where you're meeting through a virtual platform with the disputants, like Zoom, for example. And this really emerged through the COVID 19 pandemic, but it's also sustained itself post-pandemic because it's more convenient for a lot of individuals, including the parties themselves. So the first style of mediation we're going to discuss is facilitative. Fun fact Facilitative mediation is the most traditional style of mediation and has been the has been in practice for the longest in the United States. It is a process oriented style. Here, the mediator structures a process to assist the parties in reaching a settlement. The process is the primary focus of the mediator. The purpose of the facilitative mediation is for the parties to reach an agreement based on an information based on information and understanding. The mediator asks questions, helps to normalize the party's point of view, searches for underlying interests between the parties positions and assist the parties in analyzing options for settlement. The facilitative mediator does not make recommendation, does not give his or her advice or opinion about the potential outcome of the case or predict the outcome in court. The outcome is in the hands of the parties. So let's go through an example to see how it's applied. I'm going to read off the fact pattern for you and then I'll explain to you how it would be approached in a facilitative format. So Jack and Jill are siblings and business partners. They own an upcoming fashion brand that has been tripling in revenue each year. The siblings have divided the responsibilities of running the business where Jack is in charge of social media and design. Jill is responsible for the financial well-being of the business budgeting expenses and their incomes. The siblings typically meet at the beginning of the year and agree on how much each of them will earn. They tend to set their salaries at the same rate. Last year, they agreed to take to take home a salary of 50,000 each. And this year they've increased it to 66,000 each. Each sibling also has the company pay for their vehicles and medical insurance. Although Jill is responsible for the finances, they both have access to the bank accounts. Recently, Jack has shown interest in purchasing a condo. He expressed this to Jill, and Jill expressed that due to the expansion, they do not have the extra fund funds for the condo. The condo goes on purchased Jack from time to time reviews the bank accounts. Jack noticed that there were substantial funds being withdrawn from the account by Jill. An additional $5,000 per month was being withdrawn by her. When confronted by this, Jill explained that she has a family and expenses to maintain, and so she is taking extra money. However, this did not sit well with Jack, and they agreed that Jill will pay back the amount. The siblings cannot agree on a number. The relationship is deteriorating and their company is in limbo due to their dispute. The core issue between the parties or the siblings is how much money does Jill need to return to the business to which Jack is entitled to half since he since he is a 50% owner? And if facilitative mediation, the mediator approaches the core of the issue the siblings relationship. So it's not what the dispute is, which is the amount of money. The core of the issue is the siblings relationship. The mediator will ask the parties, How does this make you feel? How has this impacted your relationship? Why? What do you miss about Jack? What do you miss about Jill? The point of these questions and the discussion surrounding their relationship is to humanize Jack and Jill to one another, to reach a point of agreement and to understand why the other is hurt by by revealing the underlying issue and trying to solve. For that, the parties are able then to mend the relationship and their form of communication will improve. This will then give headway to allow them to constructively discuss the numbers. And attempt to resolve the issue of how much. The next style of mediation is evaluative. Fun fact evaluative mediation came about through court mandated mediation or court referred mediation. An evaluative mediator assist the parties in reaching a resolution by pointing out the weaknesses of their case and predicting what a judge or jury would like. Lee would likely do What would be likely to do? An evaluative mediator might make formal or informal recommendations to the parties as to the outcome of the issues. Evaluative mediators are concerned with the legal rights of the parties rather than needs and interest and evaluate based on legal concepts of fairness. Typically evaluative mediators are attorneys and have had experience in the area of dispute. The parties are more likely to be met with individually and are presented with a cost benefit analysis. The parties attorneys may be present during the mediation to help the parties reach an agreement. So let's look at evaluative. The evaluative style of mediation and action. Jack was married and was having an affair with a family friend. Jack's wife did not know about the affair, but suspected Jack was also a long time customer at Bubble Network, a cellular phone provider. He is the only authorized user on his account. His wife was a friend with Fred who worked for Bubble Network. Wife enlisted Fred's help to download. Jack's phone records. And text messages through his employment with Bubble Network. Fred obliged and provided wife with records of all the calls, text messages and copies of some of the text messages. Wife posted this information on social media and thanked Fred for helping her via her post. When we found out that husband was in fact cheating, she destroyed all of his personal property, including including designer clothing. As a result, Jack lost a couple of business dealings as a direct hit on his reputation from the social media post. Jack's information is considered CPA NAI, which is customer proprietary network information. It is protected from disclosure without client prior consent pursuant to Title 47 of the US Code. Section 222. Jack is suing Bubble Network for $1 million due to the emotional distress and loss on the business contract. Bubble Network has not taken the suit seriously. The parties have agreed to mediate. So let's find out how to deal with this evaluative. In evaluative mediation, the mediator will rely on the law to help the parties understand the strengths and weaknesses of their case. Thus, the mediator will have a copy of the statute in any supporting case law on the topic of CPA nee. This is where you have to really educate yourself about the law in this area and potentially enlist the help of a professional in the area. Due to the amount in question. It would be good to have guides on previous judgments or settlements in similar matters. This provides the perspective of the court in what they consider as appropriate damages in such a case. So first. It is good to provide this information to both parties. This can be done in caucus or jointly. I personally would prefer to do so in a joint session so that the information is provided uniformly across the board to both parties. It sets them up for being on the same page and no misinformation or miscommunication could be construed. Second, the mediator should hold individual sessions with Jack and Bubble Network. The discussion with Bubble Network is to show the weaknesses in. Their argument is that they, in fact per the statute, breach the subpoena. Cp and I protocol the mediator can present the legal views in more detail for Bubble Network to think about. So this is where you would present the statute case law, previous rulings you're not pushing them to. To take this more seriously or to to take a stance. But you are educating them so that they make an educated decision. After that, the mediator can have an individual discussion with Jack. The discussion. The discussion can focus on the amount of damages and why the amount requested potentially will not be probable. This is where they can review past settlements in court rulings on similar issues, review the contracts that he lost, and what they with the potential outcome of those contracts would have been had he not lost them. And basically. Your job as a mediator is to redirect their focus so that they could have the knowledge of what their strengths are and what their weaknesses are in their positions. It would be good practice to give them a moment to have this information settle and discuss with their respective attorneys. It will also allow them to strategize on what they will be offering when the mediator checks in. They can ask if they have considered their position, if. If they have reconsidered their position, if they have. If they have and have presented new numbers, that is great. If the mediator sees that the numbers are still very far apart and the parties are unwilling to disclose their offers, yet then bracketing may be a great tool to use at this point. And so I did mention caucus and bracketing, and I will refer back to these later in the presentation and give examples of those. The third style of mediation is transformative. Fun fact. This style was developed by Joseph Folger and Robert Busch. The purpose was to connect the mediator with the Y and to shift conflict behavior. So transformative mediation is based on the values of maximizing the empowerment of each of the parties and recognition by each of the parties of the other parties needs, interests, values and points of view. The potential for transformative mediation is that any or all parties or their relationships may be transformed transformed during mediation. It assumes that people in conflict may decide to end relationships, but they are capable of doing so in a relational way. It's the relational orientation is to conflict, not to the relationship. So it's not relationship orientation. Transformative mediators meet with the parties together, since only they can give each other recognition. The parties control the structure and outcome. The mediator is a guide and not an authority. So what that means The mediator helps the parties understand their own goals and the conflict. Help the parties understand the other party's point of view and support their understanding of the other's point of view. Support constructive changes in the quality of the parties conflict, interaction and encourage empathy. Transformative mediation assumes that the parties often bring a resolution focus to the table, and the parties are always supported by the mediator and exploring whatever outcome they want to focus. So let's look at this in action. Transformative mediation is great in interpersonal settings, such as conflicts with neighbors, family relationships and workplace disputes. Justin Jill are married and have two young children. Jess was a successful actor. However, during the parties marriage, the parties agreed that Jess would become a stay at home parent and play an active role in the children's lives. Jill is a successful businesswoman with a booming fashion brand. Jill has dedicated much of her time to her career. However, she has found flexibility in allowing herself to be more involved with the children's activities. For example, she tends to work from home and has hired a personal assistant to handle matters at work for her. Unfortunately, the party's relationship is on the rocks and they are going through divorce. Their main point of contention is the children. Each party wants sole custody of the children and wants a minimum of 50% time with the children. The parties have agreed to mediate their issues regarding the children. Both have expressed their fear of missing out on time with the children and their desire to be as heavily involved with the children as possible. Just as bitter for giving up a career in acting. Jill is bitter because she has had to sacrifice her time with her kids in order to be financially responsible. The legal issue at hand is the topic of custody and whether either party will be awarded sole physical custody or joint physical custody will be awarded to both. It might seem as though we should look to see how the topic of custody would be handled by the courts. However, in transformative mediation, that's not the concern of the mediator. So the concern of the mediator is not how the law will treat the topic. The focus of the mediator is to open the lines of communication between the parties to see that they both share a common ground. That common ground is their love for their children. And it can be used as a tool of empowering the parties, but also allows them to recognize that the goal of each person is not to take away the children from the other. It's to maximize their time with their children. And that they are both operating out of fear. So your role as a mediator is to enlighten or help the couple become enlightened about the underlying common ground and to shift their approach from fear. To the underlying common ground of both. Immensely loving their kids. And so that common goal for them now becomes what is best for the children. For example, one way that the mediator would be able to approaches is that what I hear is that you both love your children very much and you're afraid of missing out time with your children. You both have shared beautiful insight on how the other is a wonderful parent. Or the mediator may say, May I suggest that you each share how the children would benefit with the other parent? So to have them describe the other parents positive relationship with the children. So it allows the couple to address the issue from a different perspective, a perspective of commonality, and good for the children. This common ground encourages each person to recognize the other is not the enemy and that they have a greater good to achieve. Which then allows them to resolve the issue of custody and how much time each person will have with the child. So we've talked about mediation styles. Now we're going to talk about mediation tools. So tools are techniques that you could use in mediation that would allow you to be more effective as a mediator. The primary goal, the primary goal of a mediator or the tools that I'm going to be discussing is to build rapport with the parties. The concept behind rapport is that people who are like each other tend to like each other. These methods are commonly used in conflict resolution, so methods of building rapport include mirroring and matching your tone of voice, key words and active listening. Active listening can be achieved through either non verbal communication or verbal communication. So let's look at nonverbal methods of active listening first. First eye contact. It's normal and usually encouraging to have eye contact with the speaker. It allows them to know that they have been heard. But this has to be gauged because in certain situations, too much eye contact can be intimidating. So you really have to use your observation on the situation in order to determine how much eye contact you should be providing to the speaker. Your posture is really important too. So when someone is listening and engaged in a conversation, they are typically leaning, they're typically slightly leaning forward. They might have their hand under their chin or their arm under their chin, or sitting to the side with a slight slant. All these. Postures or are reflective of being engaged in what the speaker is saying and therefore you are listening and therefore they feel that they could trust you as a mediator better. Mirroring is where you're making reflective expressions. In this allows the clients to see that you are engaged in the conversation. It also can show them empathy in emotional situations. So, for example, if, say, a client has their arms crossed and they seem a little bit standoffish, you know, without saying a thing. Cross your arms as well. And then slowly, as the conversation progressed progresses, relax and they will start to mimic that. You are relaxing. But it's not just in their arms. Their overall nature starts to relax and they become more engaged in the conversation. Body language is also important. So nodding your head yes or no in response to statements that a client is saying or gesturing will assure them that you are in fact keeping up with what their statements are. And most importantly, avoid distractions. Do not have your cell phone on. You do not allow staff to interrupt you during the mediation session. Do not have your computer open unless it's has an explicit purpose during the mediation process. You need to give the client your undivided attention and to show them that you are taking this seriously as it is serious to them. Now let's explore verbal methods of active listening. The first is positive reinforcement. It can take the form of remembering where you remember a few key points from a previous discussion and. You repeat it back to relay a message was received or understood, and it allows you to earn their trust. Another method of positive reinforcement is repeating back or reframing. So when you repeat back the client's statement in your own words, it shows that the client shows the client that you heard what they said and that you understand it. So for example, when a client has said a lot and they've relayed a lot of information, I typically say, so what I am hearing is or what I understood you to say is in this way, one, it engages them. Two, It makes them feel assured that you are in fact trying to sort things out for them and to listen to them. Another thing is to ask relevant questions when you're asking relevant questions. And you're making varying statements, meaning you're asking them in different formats. It indicates to the client that you are working towards a solution for them. Clarification is where you ask the clients for clarification, not to repeat what they're saying, but to clarify and so that it ensures the correct message is being received by you. This process involves the use of open ended questions which allow the speaker to expand on certain points when necessary. Avoid questions that would require a yes or no answer and open ended questions. Examples are How do you feel? What is important but avoid questions that would require yes or no answers. Summarization. Is always important, especially at before a break or when you return back from a break and it's done where you take the main points and the message receive and you are reiterating them back to the clients in a clear, logical way. And the importance of this is. You tell the client that you heard what the main points are, but it also allows them the opportunity to correct you if you've misunderstood or misstated something. And lastly, small verbal cues are also crucial in ensuring that you are building rapport with your clients in the mediation process. Now we're going to talk about caucuses. Caucuses are where the mediator has separate sessions with the parties. So they typically we typically split the parties out in two different rooms and the mediator goes back and forth between the rooms. It allows the parties to speak more openly to the mediator about their position without risking revealing their hand to the other party. So when you when a mediator is in caucus with one party, the mediator cannot disclose the information provided to them unless to the other party, the party that's not present in the caucus, unless they have been explicitly given permission to explicitly given permission to do so. It benefits some mediations because it provides the mediator better insight on each party's position, which will allow him or her to choose the appropriate technique to assist the parties in their dispute. It is important to note that caucusing is is not always necessary in all disputes, and it may not always be the right choice in certain disputes and therefore be counterproductive. For example, in divorce mediation, I prefer not to caucus any of my divorce or any of my mediation sessions with my clients because they already come into mediation very distrustful, distrustful of the other party, and they tend to distrust the mediator. And if you have had sidebar conversations with the other party, they're afraid that they can convince you of their position and therefore now you no longer are in neutral. And so caucusing could be very counterproductive in the family law setting. So I mentioned bracketing earlier, and we're going to go through an example of it, but I'd like to explain what it is. A bracket a bracket can assist the parties through a deadlock, so the parties cannot see eye to eye. They're stuck on numbers in there or positions and or positions. Then bracketing might be the answer. It's where the mediator requests both parties to adjust their requests. The parties do so simultaneously. So while one goes up to up, the other may go down from their initial requests. It allows the parties to each propose a range without agreeing to changing the original stance. It assists the parties to move into settlement more swiftly. It also provides the party with insight. On where their middle points are. So I went back to Jack and Jill where their siblings, they own a fashion brand and they're business partners and they're disputing and they're disputing the amount owed by Jill. So Jack commenced with a request of half a million dollars while Jill started with 50,000. They are both upset with the other's offer, and this has led to a deadlock. So they're like, I can't believe Jack is requesting half a million dollars. I cannot believe Jill sees so lacks importance to this topic and is only giving me $50,000. So. They're at a deadlock. It would be a perfect opportunity for the mediator to propose bracketing to the parties. And so the mediator did. They agreed. In response, Jack went down by proposing a range of 100 K to 400 K, while Jill went up by proposing a range of 75 K to 2200 k. What does this translate to? One, Jack is willing to go down to 400,000. If Jill is willing to go up to 100,000 and Jack is potentially willing to settle at around 250 K, which is his midpoint, and Jill's midpoint is 137 K. So this allows the parties to see that they are moving into a closer range or a shorter range than they were from before. After this bracket, the plaintiff or can propose a new conditional range. Offer a number or ask the mediator to propose a new range. So typically bracketing leads to more discussion and progresses the topic towards settlement. Next technique is consider the mediator's proposal. This is where the parties allow the mediator to make a suggestion so you as a mediator would take initiative and ask, Is it all right for me to make a suggestion on settlement? And they have they, as the parties, have the option to either accept or reject the mediators proposal. One, whether or not they want to hear your proposal and to whether or not they feel comfortable with the proposal that you have revealed. This allows the mediator to identify the points of possible agreement. And it will allow the parties to think outside of the box, because now you as a mediator, you're giving a third party perspective as to the strengths and weaknesses of their arguments and their positions. A mediator proposal does not require either party to reduce their settlement, and the mediator does not disclose each party's respective bottom line with the other. So this is where we would caucus and in each party would reveal and confidentiality to the mediator what their bottom line is. And at that point, either the mediators proposal is received or not received. Write it down. Write it down is where the party's is a technique where the parties each write their best offer on a piece of paper. The parties may reach an agreement in advance that if the offer is if their respective offers are within a certain percentage of each other, so maybe within 10% of each other, the parties can meet in the middle. Or the parties can agree if their offers are not within a certain percent of each other than the offers must be discarded. So each person is writing down a number, for example. And if they in the previous example four if Jack and Jill are within 3% of each other on that the written offers, then they have pre-agreed. They will meet in the middle, that they will find the average number and they that will be the settled amount. Or the reverse could be that if they are more than 3% apart from one another, then the numbers or the offers will not be revealed. And. They will be discarded by the mediator without disclosing it to the other person. So that is what writing it down means. The final technique that I wanted to share is ear. Ear is applicable when the mediator is dealing with a high conflict individual. It stands for empathy, attention and respect. So empathy is knowing how the individual feel. And this is where the mediator expresses statements such as, I can hear how upset you are. I understand this can be frustrating. It allows you to appeal to their emotional nature. And and that usually makes them feel heard. Attention. So all of the non-verbal. Cues that we had discussed earlier, such as eye contact, leaning and nodding. Your head would be applicable under the attention part and then respect managing your tone, the manner by which you talk to them. This all is important when they're when in general, but specifically when there's a high conflict individual because there are going to be overly alert to any type of action or behavior, whether intended or not. And it may set them off in the wrong direction. Now let's talk about your role as a mediator. A mediator must preserve his or her neutrality. Must provide objective assessments and identify strengths and weaknesses of the parties. Provide realistic assessments to the parties. Maintain. Maintain the confidential nature of the parties. And usually there are rules of professional conduct, such as the American Bar Association model standards of conduct for mediators that define what these entail. A mediator must preserve the self determination, determination, nature of mediation. It is pivotal in the success of the process. In fact, according to the model standards of conduct for mediators, a mediator is required to to conduct the mediation based on a party's self determination. So what is self determination? Self determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to the process and outcome and this entails. Or this encompasses the mediator's impartiality. The mediator must avoid a conflict of interest. This means that the mediator cannot have a personal or professional interest in the dispute, or hold a professional or personal relationship with one or both of the parties. It conflict checks should be conducted similarly to that, as if in the practice of law. A mediator cannot serve as an arbitrator in the same manner or as a judge presiding in the same matter that they are mediating. They are counter. Intuitive and counterproductive to the whole process. Additionally, the modern the model standards also govern post mediation relationships and limit the relationships you pose with these individuals after you've concluded mediation. Competence is a very big factor when it comes to the mediator's qualifications. I cannot stress how important it is that a mediator is competent in the body of law. At issue with regards to the dispute they are solving without having an understanding of the law. The mediator is flying essentially blind, unable to give proper guidance to the clients and unable to have a chance, a reasonable chance at success for the clients to resolve their issues in mediation. This usually entails that the mediator has professional training in the subject matter at dispute. So for example, I am a family law attorney, so when I mediate cases, I typically mediate family law cases because I have a professional background in the topic at hand. Next is confidentiality. We've discussed confidentiality earlier, but the fact that it's being repeated means that this is one of the key points of mediation that we cannot stress enough. And so a mediator is barred from communicating about the matter with non participants. This means that he or she cannot disclose any information released to him or her in the mediation. And they have a duty to inform and educate the participants on their duty to maintain the confidential nature of mediation. So. There are stages to mediation. There is the pre mediation stage. This is where you are preparing for the mediation. It is as important as the mediation itself because it allows the mediator to set the tone for the mediation and to curb the parties expectation. The pre mediation process is used to decide with the parties where the mediation will be held. For example, it might be best to hold it in a conference room, in a building that is not associated with either party. This creates a neutral physical environment for them, which enhances their comfort level and levels out the playing field. It allows the mediator and the parties to decide who will be present or participating in the mediation. Will the attorneys be present? Do we need a key decision maker, a key decision maker at the company to be present so that the mediation can be successful? These are things that need to be discussed and decided in the pre mediation phase. The parties would provide the mediator with relevant information on their matter. Maybe it's, you know. Key information from the evidence that they have proposed in court or. Pieces of information that reveal the law or. Written previous written agreements that are substance to their case. This is where all of this information is important because it educates the mediator on the nature of the conflict and the nature of the underlying issues at hand, whether there's a high conflict, personality involved involved, whether there's a personal relationship involved. And this allows the mediator to assess what type of mediation style will be used. The pre mediation phase provides the mediator with an opportunity to research. Information with regards to the issues at hand and to request information and documentation that is essential to the dispute. It allows the parties to determine whether or not the other. Whether or not other neutral experts are necessary for the success of the mediation. If you if a forensic needs to be hired, if an expert on environmental law needs to be hired, for example, this is the time by which this determination needs to be made, and then the mediator will propose the rules of mediation and the structure of the sessions or session. Next, we have the mediation. Itself, and it starts off with a mediation introduction, the mediators introduction. Every mediation starts with an introduction by the mediator, and it sets the tone once again. It provides the do's and don'ts during mediation. The rules of conduct reviews, the confidentiality rules of confidentiality, set the agenda. It sets the agenda and format of the mediation and what the goals are of the mediation. And it allows everybody to ask questions before the parties commence. Next, during the mediation, each party will provide an opening statement. This allows them to provide their perspective on the dispute, what issues are at hand and what their respective goals are in an uninterrupted manner. Usually this is done in an open forum, meaning we're all parties are present. Then the cock the caucus may occur, which is where the mediator has the opportunity to meet individually with each party. And this gives them the opportunity, gives the parties the ability to speak more openly in front of the mediator, which in retrospect does help the mediator in certain instances to guide the parties in the process. But remember, as I said earlier. Caucusing is not always. Productive in all types of mediation sessions, and you as a mediator have to determine when it's appropriate and when it's not. Then there's there are joint sessions. So sometimes mediators might start off with caucusing after the opening statements, and sometimes they might start with a joint session if they're choosing to do both. For that particular matter. And so. It's really important that aesthetically the room is set up for the. For a joint session. Typically a round or oval conference table promotes a environment of dialogue and discussion and cooperation. Also maybe even having a. A tea station or a coffee station and snacks for the parties so that they feel more comfortable being in the presence of the other during these sessions. Then there is an ending. The ending is usually when the mediator provides a summary of what has occurred and what has been achieved. Even if the parties did not reach an agreement with regards to all of their issues or the main issue. It is important to note and remind the parties of what they have achieved. So maybe there's a large topic that was broken down into semi topics and those semi topics were discussed and were agreed to. You highlight the achievements. Remember that any movement in the mediation means that the parties are closer to a resolution. As a mediator, it is important to provide a mediator statement which provides the summary of the of the agreement reached. Remember, this document is not admissible unless the parties agree to release the document for court proceedings. Okay, so the next topic of discussion is the length of mediation. I've provided this for your information because it's always a topic of of question. How long should a mediation session be? It really comes from experience. So the following two sections link the mediation are for your informational purposes only. The second section that I've also provided for your informational purposes is the mediation agreement. It just gives you a quick overview and examples of sections that you should include in the service agreement for mediation for your potential clients. Once again, this is Jeanann Khalife. I'm an attorney mediator located in Southern California. And thank you for taking this class.

Presenter(s)

JK
Jeanann Khalife
Partner, Attorney-Mediator
Alternative Divorce Solutions

Course materials

Handout

Credit information

Jurisdiction
Credits
Available until
Status
Alabama
  • 1.0 general
Unavailable
Alaska
  • 1.0 voluntary
February 25, 2025 at 11:59PM HST Available
Arizona
  • 1.0 general
February 25, 2025 at 11:59PM HST Available
Arkansas
  • 1.0 general
February 25, 2025 at 11:59PM HST Approved
California
  • 1.0 general
February 25, 2025 at 11:59PM HST Approved
Colorado
  • 1.0 general
December 31, 2025 at 11:59PM HST Approved
Connecticut
  • 1.0 general
February 25, 2025 at 11:59PM HST Available
Delaware
    Not Offered
    District of Columbia
      Not Offered
      Florida
      • 1.5 general
      August 31, 2024 at 11:59PM HST Approved
      Georgia
      • 1.0 general
      Unavailable
      Guam
      • 1.0 general
      February 25, 2025 at 11:59PM HST Available
      Hawaii
      • 1.0 general
      February 25, 2025 at 11:59PM HST Approved
      Idaho
        Not Offered
        Illinois
        • 1.0 general
        March 31, 2025 at 11:59PM HST Approved
        Indiana
        • 1.0 general
        December 31, 2024 at 11:59PM HST Approved
        Iowa
        • 1.0 general
        January 10, 2025 at 11:59PM HST Approved
        Kansas
        • 1.0 general
        January 9, 2025 at 11:59PM HST Approved
        Kentucky
        • 1.0 general
        June 30, 2024 at 11:59PM HST Approved
        Louisiana
        • 1.0 general
        May 23, 2024 at 11:59PM HST Approved
        Maine
        • 1.0 general
        December 31, 2026 at 11:59PM HST Self Apply
        Maryland
          Not Offered
          Massachusetts
            Not Offered
            Michigan
              Not Offered
              Minnesota
                Pending
                Mississippi
                • 1.0 general
                May 7, 2024 at 11:59PM HST Approved
                Missouri
                • 1.0 general
                February 25, 2025 at 11:59PM HST Available
                Montana
                  Not Offered
                  Nebraska
                  • 1.15 general
                  July 5, 2024 at 11:59PM HST Approved
                  Nevada
                  • 1.0 general
                  December 31, 2026 at 11:59PM HST Approved
                  New Hampshire
                  • 1.0 general
                  February 25, 2025 at 11:59PM HST Available
                  New Jersey
                  • 1.2 general
                  January 16, 2025 at 11:59PM HST Approved
                  New Mexico
                    Not Offered
                    New York
                    • 1.0 areas of professional practice
                    February 25, 2025 at 11:59PM HST Available
                    North Carolina
                    • 1.0 general
                    February 29, 2024 at 11:59PM HST Approved
                    North Dakota
                    • 1.0 general
                    February 25, 2025 at 11:59PM HST Available
                    Ohio
                    • 1.0 general
                    Unavailable
                    Oklahoma
                    • 1.0 general
                    Pending
                    Oregon
                      Pending
                      Pennsylvania
                      • 1.0 general
                      January 16, 2026 at 11:59PM HST Approved
                      Puerto Rico
                      • 1.0 general
                      Pending
                      Rhode Island
                        Not Offered
                        South Carolina
                        • 1.05 general
                        Unavailable
                        South Dakota
                          Not Offered
                          Tennessee
                          • 1.05 general
                          Pending
                          Texas
                          • 1.0 general
                          February 28, 2024 at 11:59PM HST Approved
                          Utah
                            Pending
                            Vermont
                            • 1.0 general
                            February 25, 2025 at 11:59PM HST Approved
                            Virginia
                            • 1.0 general
                            October 31, 2024 at 11:59PM HST Approved
                            Virgin Islands
                            • 1.0 general
                            February 25, 2025 at 11:59PM HST Available
                            Washington
                            • 1.0 law & legal
                            February 24, 2028 at 11:59PM HST Approved
                            West Virginia
                              Not Eligible
                              Wisconsin
                                Not Eligible
                                Wyoming
                                  Not Offered
                                  Credits
                                  • 1.0 general
                                  Available until
                                  Status
                                  Unavailable
                                  Credits
                                  • 1.0 voluntary
                                  Available until

                                  February 25, 2025 at 11:59PM HST

                                  Status
                                  Available
                                  Credits
                                  • 1.0 general
                                  Available until

                                  February 25, 2025 at 11:59PM HST

                                  Status
                                  Available
                                  Credits
                                  • 1.0 general
                                  Available until

                                  February 25, 2025 at 11:59PM HST

                                  Status
                                  Approved
                                  Credits
                                  • 1.0 general
                                  Available until

                                  February 25, 2025 at 11:59PM HST

                                  Status
                                  Approved
                                  Credits
                                  • 1.0 general
                                  Available until

                                  December 31, 2025 at 11:59PM HST

                                  Status
                                  Approved
                                  Credits
                                  • 1.0 general
                                  Available until

                                  February 25, 2025 at 11:59PM HST

                                  Status
                                  Available
                                  Credits
                                    Available until
                                    Status
                                    Not Offered
                                    Credits
                                      Available until
                                      Status
                                      Not Offered
                                      Credits
                                      • 1.5 general
                                      Available until

                                      August 31, 2024 at 11:59PM HST

                                      Status
                                      Approved
                                      Credits
                                      • 1.0 general
                                      Available until
                                      Status
                                      Unavailable
                                      Credits
                                      • 1.0 general
                                      Available until

                                      February 25, 2025 at 11:59PM HST

                                      Status
                                      Available
                                      Credits
                                      • 1.0 general
                                      Available until

                                      February 25, 2025 at 11:59PM HST

                                      Status
                                      Approved
                                      Credits
                                        Available until
                                        Status
                                        Not Offered
                                        Credits
                                        • 1.0 general
                                        Available until

                                        March 31, 2025 at 11:59PM HST

                                        Status
                                        Approved
                                        Credits
                                        • 1.0 general
                                        Available until

                                        December 31, 2024 at 11:59PM HST

                                        Status
                                        Approved
                                        Credits
                                        • 1.0 general
                                        Available until

                                        January 10, 2025 at 11:59PM HST

                                        Status
                                        Approved
                                        Credits
                                        • 1.0 general
                                        Available until

                                        January 9, 2025 at 11:59PM HST

                                        Status
                                        Approved
                                        Credits
                                        • 1.0 general
                                        Available until

                                        June 30, 2024 at 11:59PM HST

                                        Status
                                        Approved
                                        Credits
                                        • 1.0 general
                                        Available until

                                        May 23, 2024 at 11:59PM HST

                                        Status
                                        Approved
                                        Credits
                                        • 1.0 general
                                        Available until

                                        December 31, 2026 at 11:59PM HST

                                        Status
                                        Self Apply
                                        Credits
                                          Available until
                                          Status
                                          Not Offered
                                          Credits
                                            Available until
                                            Status
                                            Not Offered
                                            Credits
                                              Available until
                                              Status
                                              Not Offered
                                              Credits
                                                Available until
                                                Status
                                                Pending
                                                Credits
                                                • 1.0 general
                                                Available until

                                                May 7, 2024 at 11:59PM HST

                                                Status
                                                Approved
                                                Credits
                                                • 1.0 general
                                                Available until

                                                February 25, 2025 at 11:59PM HST

                                                Status
                                                Available
                                                Credits
                                                  Available until
                                                  Status
                                                  Not Offered
                                                  Credits
                                                  • 1.15 general
                                                  Available until

                                                  July 5, 2024 at 11:59PM HST

                                                  Status
                                                  Approved
                                                  Credits
                                                  • 1.0 general
                                                  Available until

                                                  December 31, 2026 at 11:59PM HST

                                                  Status
                                                  Approved
                                                  Credits
                                                  • 1.0 general
                                                  Available until

                                                  February 25, 2025 at 11:59PM HST

                                                  Status
                                                  Available
                                                  Credits
                                                  • 1.2 general
                                                  Available until

                                                  January 16, 2025 at 11:59PM HST

                                                  Status
                                                  Approved
                                                  Credits
                                                    Available until
                                                    Status
                                                    Not Offered
                                                    Credits
                                                    • 1.0 areas of professional practice
                                                    Available until

                                                    February 25, 2025 at 11:59PM HST

                                                    Status
                                                    Available
                                                    Credits
                                                    • 1.0 general
                                                    Available until

                                                    February 29, 2024 at 11:59PM HST

                                                    Status
                                                    Approved
                                                    Credits
                                                    • 1.0 general
                                                    Available until

                                                    February 25, 2025 at 11:59PM HST

                                                    Status
                                                    Available
                                                    Credits
                                                    • 1.0 general
                                                    Available until
                                                    Status
                                                    Unavailable
                                                    Credits
                                                    • 1.0 general
                                                    Available until
                                                    Status
                                                    Pending
                                                    Credits
                                                      Available until
                                                      Status
                                                      Pending
                                                      Credits
                                                      • 1.0 general
                                                      Available until

                                                      January 16, 2026 at 11:59PM HST

                                                      Status
                                                      Approved
                                                      Credits
                                                      • 1.0 general
                                                      Available until
                                                      Status
                                                      Pending
                                                      Credits
                                                        Available until
                                                        Status
                                                        Not Offered
                                                        Credits
                                                        • 1.05 general
                                                        Available until
                                                        Status
                                                        Unavailable
                                                        Credits
                                                          Available until
                                                          Status
                                                          Not Offered
                                                          Credits
                                                          • 1.05 general
                                                          Available until
                                                          Status
                                                          Pending
                                                          Credits
                                                          • 1.0 general
                                                          Available until

                                                          February 28, 2024 at 11:59PM HST

                                                          Status
                                                          Approved
                                                          Credits
                                                            Available until
                                                            Status
                                                            Pending
                                                            Credits
                                                            • 1.0 general
                                                            Available until

                                                            February 25, 2025 at 11:59PM HST

                                                            Status
                                                            Approved
                                                            Credits
                                                            • 1.0 general
                                                            Available until

                                                            October 31, 2024 at 11:59PM HST

                                                            Status
                                                            Approved
                                                            Credits
                                                            • 1.0 general
                                                            Available until

                                                            February 25, 2025 at 11:59PM HST

                                                            Status
                                                            Available
                                                            Credits
                                                            • 1.0 law & legal
                                                            Available until

                                                            February 24, 2028 at 11:59PM HST

                                                            Status
                                                            Approved
                                                            Credits
                                                              Available until
                                                              Status
                                                              Not Eligible
                                                              Credits
                                                                Available until
                                                                Status
                                                                Not Eligible
                                                                Credits
                                                                  Available until
                                                                  Status
                                                                  Not Offered

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