What are the Different Forms of Mediation?
A) Mediator Approaches to Mediation
i) Facilitative
ii) Evaluative
B) General Process
i) Preliminary Discussions
ii) Joint Sessions
iii) Private Caucus
C) Confidentiality
i) Mediating with private parties
ii) Mediating with the federal government
a) Mediator Approaches to Mediation
There are two basic approaches to mediation, Facilitative and Evaluative. However, it is rare that a mediator's approach will be purely facilitative or evaluative. Instead, a skilled mediator is most likely to use some combination of both approaches based on the nature of the dispute and the needs of the parties. Where one or more parties have strong views regarding the approach most suited to the dispute, those views should be taken into consideration in the selection of the mediator.
i) Facilitative Mediation
A procedure in which a neutral third-party facilitates communication and negotiations among the parties to seek resolution of issues between the parties. Mediation is non-binding and does not, unless otherwise agreed to by the parties, authorize the third-party neutral to evaluate (see below), decide or otherwise offer a judgment on the issues between the parties. If the mediation concludes in an agreement, that agreement, if it meets otherwise applicable law concerning the enforceability of contracts and mediated settlement agreements, is enforceable as a contractual agreement. Where authorized by applicable law, mediation agreements achieved during pending litigation may be entered as court judgments.
(Model Rule for The Lawyer as Third-Party Neutral)
ii) Evaluative Mediation
A procedure in which a third-party neutral facilitates communications and negotiations among the parties to effect resolution of the matter by agreement of the parties. In addition, the third-party neutral may engage in evaluative tasks, such as providing legal information, helping parties and their counsel assess likely outcomes and inquiring into the legal and factual strengths and weaknesses of the problems presented. By agreement of the parties or applicable law, mediators may sometimes be called on to act as evaluators or special discovery masters, or to perform other third-party neutral roles.
(Model Rule for The Lawyer as Third-Party Neutral)
b) General Process
Mediation is a flexible, nonbinding dispute resolution process that uses a neutral third party- the mediator- to facilitate negotiation and resolution between parties. A mediator has no power to impose a solution on the parties but rather provides a framework within which parties can resolve their dispute. (Mediator’s Deskbook, 1999)
i) Preliminary Discussions
Before a mediation can take place, certain procedural issues need to be addressed. Relevant procedural issues include, selection of a mediator, a retention agreement for the mediator, scheduling, exchange of documents, confidentiality, and who shall attend the mediation, including the client representatives. Preliminary discussions may be conducted either in person or by telephone and will need to take into account the mediator's views and standard practices. (Mediator’s Deskbook, 1999)
ii) Joint Sessions
The substantive portion of the mediation often begins with a joint session where parties and their counsel are present. Usually the mediator begins the session with opening remarks explaining the process and then requesting each side to present an opening remarks. A joint session may be counterproductive where extreme hostilities exist between the parties and the mediator may then decide to see each party separately before convening the joint session. (Mediator’s Deskbook, 1999)
iii) Private Caucus
In caucus, each side meets separately with the mediator to disclose facts, concerns, and interests that they would not ordinarily reveal to the other party for numerous reasons, including tactical advantage. The information disclosed by one party to the mediator during caucus is generally confidential as determined by the applicable mediation rules, mediator guidelines and the parties’ confidentiality agreement. (Mediator’s Deskbook, 1999)
Pre-Dispute ADR Processes: Before a dispute arises, organizations can also take steps and build-in processes to mitigate their risks. >Learn more
c) Confidentiality
Mediation is private and generally confidential. For example, CPR Mediation Procedure provides for confidentiality, in the following form:
The entire mediation process is confidential. Unless agreed among all the parties or required to do so by law, the parties and the mediator shall not disclose to any person who is not associated with participants in the process, including any judicial officer, any information regarding the process (including pre-process exchanges and agreements), contents (including written and oral information), settlement terms or outcome of the proceeding. If litigation is pending, the participants may, however, advise the court of the schedule and overall status of the mediation for purposes of litigation management. Any written settlement agreement resulting from the mediation may be disclosed for purposes of enforcement. (CPR Mediation Procedure)
i) Mediating with Private Parties
The principal pre-condition to successful mediation is that the parties share a genuine desire to resolve the dispute promptly in an equitable manner.One of the important features of mediation is that each party can discuss with the mediator certain confidential information that it would not disclose to the other party. Equipped with such information, a skillful mediator often is able to identify hidden interests and settlement alternatives that would not have been considered in unassisted negotiations and that may help overcome barriers to settlement. (CPR Mediation Procedure)
ii) Mediating with the Federal Government
5 U.S.C.A. § 574
Federal legislation does provide that dispute resolution processes are confidential and that neutrals may not voluntarily disclose or through discovery or compulsory process be required to disclose any dispute resolution communication or any communication provided in confidence to the neutral. However, legislation does provide for the following exceptions to this rule. Unless:
All parties to the dispute resolution proceeding and the neutral consent in writing, and, if the dispute resolution communication was provided by a nonparty participant, that participant also consents in writing;
The dispute resolution communication has already been made public;
The dispute resolution communication is required by statute to be made public, but a neutral should make such communication public only if no other person is reasonably available to disclose the communication; or
A court determines that such testimony or disclosure is necessary to --
Further unless to,
Prevent a manifest injustice;
Help establish a violation of law; or
Prevent harm to the public health or safety, of sufficient magnitude in the particular case to outweigh the integrity of dispute resolution proceedings in general by reducing the confidence of parties in future cases that their communications will remain confidential.
Furthermore, a party to a dispute resolution proceeding shall not voluntarily disclose or through discovery or compulsory process be required to disclose any dispute resolution communication, unless:
The communication was prepared by the party seeking disclosure;
All parties to the dispute resolution proceeding consent in writing;
The dispute resolution communication has already been made public;
The dispute resolution communication is required by statute to be made public;
A court determines that such testimony or disclosure is necessary to—
Prevent a manifest injustice;
Help establish a violation of law; or
Prevent harm to the public health and safety, of sufficient magnitude in the particular case to outweigh the integrity of dispute resolution proceedings in general by reducing the confidence of parties in future cases that their communications will remain confidential;
The dispute resolution communication is relevant to determining the existence or meaning of an agreement or award that resulted from the dispute resolution proceeding or to the enforcement of such an agreement or award;
Legislation also provides that parties may agree to alternative confidential procedures for disclosures by a neutral. Upon such agreement the parties shall inform the neutral before the commencement of the dispute resolution proceeding of any modification.
iii) Mediating with Other Governmental Entities (States and Municipalities)
State and municipal entities can also engage in confidential dispute resolution processes; however, just as is the case with the Federal Government, there may be exceptions to confidentiality. Parties should take care to understand any applicable law, including Sunshine Laws, and plan accordingly.
The information and resources on this website should not be construed as legal advice or opinion, or as a substitute for the advice of counsel.
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