Nolo Press,.Mediate, Don't Litigate - Strategies For Successful Mediation. (2004.ISBN1413300308)
Nolo Press,.Mediate, Don't Litigate - Strategies For Successful Mediation. (2004.ISBN1413300308)
Nolo Press,.Mediate, Don't Litigate - Strategies For Successful Mediation. (2004.ISBN1413300308)
Don’t Litigate
by Peter Lovenheim
& Lisa Guerin
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Mediate,
Don’t Litigate
by Peter Lovenheim
& Lisa Guerin
FIRST EDITION April 2004
EDITOR Emily Doskow
PRODUCTION Susan Putney
COVER Susan Putney
PROOFREADER Robert Wells
INDEX Victoria Baker
PRINTER Delta Printing Solutions, Inc.
Lovenheim, Peter.
Mediate, don’t litigate / Peter Lovenheim & Lisa Guerin.-- 1st ed.
p. cm.
ISBN 1-4133-0030-8 (alk. paper)
1. Dispute resolution (Law)--United States--Popular works. 2. Mediation--United
States--Popular works. I. Guerin, Lisa, 1964- II. Title.
KF9084.Z9L683 2004
347.73'9--dc22 2003070161
Copyright © 2004 by Peter Lovenheim. All Rights Reserved. Printed in the USA.
No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any
form or by any means, electronic, mechanical, photocopying, recording, or otherwise without
prior written permission of the publisher. Reproduction prohibitions do not apply to the forms
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Quantity sales: For information on bulk purchases or corporate premium sales, please contact the
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Acknowledgments
I thank the staff at Nolo for their support and assistance, especially Jake
Warner, Marcia Stewart, Emily Doskow, and co-author Lisa Guerin.
I’d also like to thank Andrew Thomas, executive director of the Center for
Dispute Settlement in Rochester, New York. More than 20 years ago, Andrew was
the first person I heard utter the phrase, “Mediate, don’t litigate.”
—Peter Lovenheim
Dedication
(from Peter Lovenheim)
To Irina
Table of Contents
Introduction
A. UNDERSTANDING MEDIATION ...................................................... Intro/3
B. USING THIS BOOK ............................................................................ Intro/3
1 Mediation Basics
A. WHAT IS MEDIATION? .......................................................................... 1/3
B. HOW DO CASES GET TO MEDIATION? ............................................... 1/7
C. ANATOMY OF A MEDIATION ............................................................. 1/11
D. MEDIATION VS. OTHER FORMS OF DISPUTE RESOLUTION ........... 1/16
10 Divorce Mediation
A. WHAT IS DIVORCE MEDIATION? ....................................................... 10/3
B. ISSUES COMMON TO COURT-SPONSORED AND PRIVATE
MEDIATION ......................................................................................... 10/7
C. COURT-SPONSORED DIVORCE MEDIATION ................................... 10/19
D. PRIVATE DIVORCE MEDIATION ....................................................... 10/27
11 Mediating Business Disputes
A. SELECTING A BUSINESS MEDIATOR .................................................. 11/5
B. BUSINESS DISPUTES THAT CAN BE MEDIATED ................................ 11/8
C. GETTING YOUR CASE TO THE TABLE ............................................. 11/12
D. PREPARING FOR YOUR BUSINESS MEDIATION .............................. 11/16
E. INSIDE THE MEDIATION SESSION ................................................... 11/16
F. WRITING THE AGREEMENT ............................................................. 11/18
G. OTHER DISPUTE RESOLUTION PROCEDURES FOR BUSINESS CASES ... 11/18
Index
Introduction
A. Understanding Mediation
Mediation is a process in which two or more people involved in a
dispute come together to try to find a fair and workable solution to their
problem. They do so with the help of a mediator, a neutral third person
who is trained in cooperative conflict resolution techniques. Mediation
can be used to resolve most types of civil (noncriminal) disputes that
traditionally would end up in court, such as those involving personal
injuries, contracts, leases, employment, and divorce. Mediators are also
skilled at resolving interpersonal disputes between neighbors, room-
mates, business partners, coworkers, and friends.
Certainly, the most efficient way to resolve any dispute is simply to
sit down with the other person involved and talk it out. But if that’s not
possible, mediation will usually be the best alternative.
Use of mediation as a means of resolving disputes has grown rapidly
in the United States in recent years. Wherever you live, you should be
able to find a mediator or mediation service to help with your dispute.
And in most cases, you will not need a lawyer to go to mediation. The
rules of mediation are usually simple and straightforward. The prepara-
tion may take some time and thought, but won’t overwhelm you with
complicated technicalities. The mediation itself will follow a simple
procedure and will be conducted in plain English.
What this book does not cover. The book does not cover mediation of
disputes between labor unions and management. This aspect of
mediation is governed by federal and state laws, and by the terms of union
contracts. Special rules apply that are not generally applicable to other
types of mediation. Nor does the book cover multiparty environmental
disputes or disputes arising in other specialized areas of public policy.
This icon lets you know where you can read more about the
particular issue or topic discussed in the text.
This icon means that you may be able to skip some material that
doesn’t apply to your situation.
Mediation Basics
C hances are good that you picked up this book because you’re in
the midst of a dispute with someone, and you’d like to resolve it outside
of court. Maybe you and your soon-to-be ex-spouse can’t agree on how
to divide your marital property. Perhaps you and your business partner
don’t see eye to eye about the future direction of your company. Or, you
may be in the middle of a lawsuit that you’d like to settle before trial.
In these situations—and for countless other types of disagreements,
large and small—mediation may be your best option. Mediation is
cheaper, quicker, and much less complicated than going to court. And
because mediating parties work together to find a solution to their
problem, mediation can often help rebuild strained relationships and lay
the groundwork for more positive interactions in the future. This can be
especially important in situations that require ongoing communication
between the parties, as might be the case when parents share custody of
their children, partners own a business together, or neighbors use a
common driveway.
This chapter will introduce you to mediation as a tool for resolving
disputes. Here, we explain what mediation is, how it works, and what
you can expect when you mediate a dispute. We also explain how
mediation differs from other methods of resolving disputes. Armed with
this basic information, you can then move on to the details of deciding
whether to mediate, choosing a mediator, and preparing for the media-
tion, covered in subsequent chapters.
This overview chapter is designed for the reader who is relatively new to
mediation. Because most of the topics mentioned here are discussed
in greater depth later in the book, readers who are already familiar with
mediation may wish to skip or skim this material.
Mediation Basics 1/3
A. What Is Mediation?
Mediation is a process in which two or more people involved in a
dispute come together to try to work out a solution to their problem
with the help of a neutral third person, called the “mediator.” The
mediator is usually trained in conflict resolution, although the extent of
this training can vary greatly. Unlike a judge or an arbitrator, the media-
tor does not make decisions about the dispute. The mediator’s job is to
help the participants evaluate their goals and options in order to find
their own solution.
Mediation is not coercive—that is, the mediator doesn’t have the
power to force the parties to do anything. Nothing will be decided
unless both you and the other party agree to it. However, if you do
arrive at a mutual agreement, you can make it legally binding by writing
the agreement in the form of an enforceable contract. (For more on how
to write a mediation agreement, see Chapter 7.)
Agreeing to mediate does not mean that you give up any other legal
rights. If you can’t reach an agreement in mediation, you are free to
pursue other remedies, such as binding arbitration or litigation. (See
Section D, below.)
• the opportunity to meet face-to-face with the other party, speak your
mind, and be heard
• understand the difference between what they want and what they
need (people make certain demands in a dispute—the payment of
money, cutting down a tree, or visiting children only on Tuesday—
but these “wants” are not always the same as their broader needs for
emotional and economic security, respect, or preservation of impor-
tant relationships; once identified, needs are often easier to satisfy
than wants)
• understand the wants and needs of the other side (parties may
discover that some of their wants and needs overlap, which can
open the door to a mutually satisfying compromise)
1. Voluntary Mediation
Most cases come to mediation when the people involved in a dispute or
a lawsuit agree to bring in a mediator to help them resolve it. Usually,
one party decides mediation might be a good idea and suggests it to the
other or contacts a mediation service, which in turn contacts the other
side to propose mediation. Or, an employer, trade group, or other
organization might establish a voluntary mediation program that it
promotes to employees or members.
2. Mandatory Mediation
In mandatory mediation, the parties are required—by contract, court
order, or law—to attend at least one mediation session. However, only
the process is mandatory, not the resolution. Although the parties have
to attend the session, they don’t have to agree to anything.
There are a couple of different types of mandatory, or required,
mediation. In an effort to cut the flood of lawsuits and show people the
benefits of mediation, many states have passed laws that require you to
try mediation before you can move your lawsuit forward. Courts in
some states routinely order small claims actions or regular civil claims
for relatively small amounts of money to mediation. In California and
other states, courts may order divorcing parents to mediate issues of
child custody and visitation.
1/8 MEDIATE, DON’T LITIGATE
• Private dispute resolution companies: These firms mediate all kinds of civil
disputes, from contract and business issues to wrongful termination
and personal injury claims. They provide not only mediation
services but also help with paperwork, scheduling the mediation,
and getting the other party to agree to mediate. Because they offer
these additional services, their fees tend to be fairly high (see “Me-
diation Costs,” below).
MEDIATION COSTS
The cost of mediating varies greatly depending on the type of case and
the mediator. In nearly all cases, however, mediating is far less expen-
sive than going to court. Here is a quick overview of what you can
expect to pay:
• Nonprofit community mediation centers: These groups offer mediation
services free or for a nominal charge. For a one-day mediation of
a neighborhood dispute, for example, you might expect to pay a
$20 administrative fee (which the center might waive if you can’t
afford it).
• Private dispute resolution companies: These firms usually charge a set
administrative fee plus an hourly rate for the mediator’s time.
Fees vary somewhat with location: companies in New York, Los
Angeles, and other major cities may charge a $500 administrative
fee per party plus $200 per hour per party. In medium-sized
cities and small towns, expect fees to be reduced by about half.
For a half-day mediation of a personal injury dispute, for
example, you might have to pay $600 in total fees. For a compli-
cated, three-day mediation between two large businesses, the
parties might have to pony up $8,000 each.
• Private mediators: Most private mediators charge by the hour
(there’s no administrative fee). Divorce and family mediators, who
specialize in divorce cases and other family-related problems
(such as disputes between parents and children, siblings, and
extended family members), might charge anywhere from $60 up
to $300 per hour, with a rate of $100 being typical. The higher
rates apply in the larger cities. For a couple that owns substantial
property and has minor children, the mediation might consist of
six two-hour sessions over the course of a couple of months, for a
total fee of $1,200. (The mediator would charge an additional fee
to write up the agreement.) Other private mediators might charge
significantly more, depending on their area of expertise. For
example, a mediator who works solely on disputes between
employees and employers might charge up to $400 or more per
hour, particularly in large metropolitan areas.
Mediation Basics 1 / 11
C. Anatomy of a Mediation
No two disputes are exactly alike, and the same is true for mediations.
The personality and skill of the mediator, the temperaments of the
parties, the volatility of the underlying issues, and countless other factors
all affect how a particular mediation plays out. Nonetheless, most
mediations follow similar patterns and similar rules. This section de-
scribes what you can expect at your mediation—starting with where the
mediation will take place.
2. Mediation Rules
Though mediation is much less formal than litigation and arbitration,
there are a few rules. Your mediator or mediation service should give you
written rules well in advance of your first session. Read these carefully
ahead of time, because you’ll have to sign an agreement at the mediation,
pledging to abide by them. If you have any questions, contact the media-
tor or mediation service, or review them with a lawyer or law coach.
Typically, mediation rules are a couple of pages long and cover these
topics:
• Matters of procedure, including what forms you have to fill out to begin
the mediation process and how the mediator will conduct the
mediation
• Fees, including how much each party will pay and the deadlines for
payment, and
Mediation Basics 1 / 13
the mediator in private. For the same reason, some community mediation
centers do not use caucusing in cases involving interpersonal conflicts.
And some mediator rarely caucus in any type of dispute, believing that the
process is more effective when everyone involved is present at all times.
STAGE 5: Joint Negotiation. After caucuses, the mediator may bring the
parties back together to negotiate directly.
STAGE 6: Closure. This is the end of the mediation. If an agreement has
been reached, the mediator may draft its main provisions as the parties
listen. The mediator may ask each side to sign a written summary of
their agreement or suggest they take it to their lawyers for review. If no
agreement was reached, the mediator will review whatever progress has
been made and advise the parties of their options, such as meeting again
at a later date, going to arbitration, or going to court.
1. What Is Arbitration?
People sometimes use the word “mediation” interchangeably with
“arbitration,” another popular method of resolving disputes outside of a
courtroom. However, these two procedures are very different.
Arbitration is an out-of-court procedure for resolving disputes in
which one or more neutral third parties, called an arbitrator or arbitra-
tion panel, hears evidence and arguments from both sides, then reaches
Mediation Basics 1 / 17
Source: “Mediation and Prepaid Legal Plans,” by Kenneth Cloke and Angus Strachan, Mediation Quarterly , No. 18, 1987, p. 94.
(The chart above is adapted from the referenced table and includes material that doesn’t appear in the original.)
1. Advantages
Especially when compared to litigation as a way to resolve disputes,
mediation offers these advantages:
• Speed: Once you and the other party agree to mediate, you can
probably get a mediation scheduled within a few weeks. Most
mediation sessions last from a couple of hours to a whole day,
depending on your dispute. In contrast, lawsuits often take many
months or, more typically, years to resolve. In some large cities, it
can take two years or longer just to get a court date.
Deciding Whether to Mediate 2/5
activities or where the family dog will live. Many disputes harbor
undiscovered or undisclosed issues, and mediation offers a forum
where these matters can surface, be discussed, and become part of
the overall resolution.
• Reduced stress: For many people, going to court is scary. You face
complicated procedures, a winner-take-all scenario, and the frustra-
tion of being dependent on a system whose practitioners speak a
foreign language full of terms like motion in limine, order to show cause,
and res ipsa loquitur. Mediation, by contrast, is informal, conducted in
plain English, and driven in large part by the parties themselves.
2. Disadvantages
In some situations, mediation has disadvantages that might outweigh
these potential benefits:
• No imposed solution: The mediator does not have the authority to
decide on a resolution for the parties. Although this can be an
advantage in many cases, it might also be a problem. If you are
seeking vindication of your rights, nobody will tell the other party
that he or she has done wrong. And mediation doesn’t always result
in a solution—if your case is one of the relatively few that don’t
settle, you will have spent some time, money, and energy without
resolving your problem.
Deciding Whether to Mediate 2/7
• Power imbalance: If the other party has far more power than you—
whether financial, intellectual, emotional, or otherwise—you may be
at a significant disadvantage in mediation, unless the mediator is
willing and able to help you articulate your point of view and
carefully evaluate any proposed settlement to be sure it’s fair. For
example, a person dissatisfied with the purchase of a home com-
puter may find himself seated across the table from the computer
store’s district manager, who not only knows more about computers
but is also trained in negotiating techniques. Similarly, a shy college
student who works part time and has been sexually harassed by her
manager may be at a serious disadvantage mediating with the owner
of the company. Power imbalance can also be an important consid-
eration in divorce mediation, if one spouse has a history of abuse or
intimidation.
2/8 MEDIATE, DON’T LITIGATE
• Slippery slope: Some people, including those who are extremely anxious or
eager to please, may be a bit too willing to buy into the “compromise”
goal of mediation and end up accepting an inappropriate agreement in
order to appear cooperative. These folks might benefit from a more
structured dispute resolution mechanism.
• Showing your hand: To mediate effectively, you generally need to reveal
enough about the strengths of your position to persuade the other side
to compromise. You also have to be open to seeing the other person’s
point of view, which may involve admitting your responsibility for some
aspects of the problem. This is all well and good—unless the case
doesn’t settle. If you end up in court, the information you revealed in
mediation might help the other side plan a more effective defense.
Learn your rights before you make a decision. It’s often wise to research
your legal rights and responsibilities before you decide to medi-
ate. That way, you can make an informed decision about how your case
might play out in court if you decide not to mediate or the mediation
isn’t successful. If you do not know whether the law might provide a
remedy for your dispute, you should do some research or consult a
lawyer (see Chapter 13).
3. Your Dispute Is No One Else’s Business—and You Want to Keep It That Way
As noted earlier, one of the drawbacks of having your dispute settled in
court is that, by and large, everything said or submitted in connection
with a lawsuit becomes publicly available. Only by a special order of a
judge can information be “sealed” from public exposure. So whether
your desire is to protect trade secrets or just to avoid airing your dirty
laundry in public, you will be more likely to succeed if you handle your
dispute through mediation rather than a lawsuit.
For example, if you sued your employer for sexual harassment,
much of the background information both sides collect to try to harm
the reputation of the other would probably be available to the public.
This would include not only what was said in court, but also what was
revealed before trial in “discovery” proceedings, during which you may
have had to answer very personal questions about your wages, work
performance, associates, and personal habits on and off the job. And
your employer would likely have had to answer questions about every-
thing from the company’s structure, ownership, profitability, and
employee relations to whether lewd posters were hung on the men’s
room walls or dirty jokes were told at board meetings.
Also, lawsuits are sometimes publicized. Newspaper and television
reporters who cover the courts know where to find the information that
will make an otherwise boring legal story come alive with interesting
(usually embarrassing) personal details. Don’t take this threat to your
privacy lightly; every day the media—including trade journals and other
specialist publications with a narrow focus—report on thousands of
legal actions. For example, even if a sexual harassment claim against a
trucking company wasn’t reported in the daily newspapers or on the TV
news, it might be the subject of a big story in a magazine that covers the
industry.
Mediation, by contrast, is a strictly private affair; there will be no
stenographer or tape recorder. Mediators take an oath to protect the
Deciding Whether to Mediate 2 / 13
confidences entrusted to them. Many will even throw away their notes
after the mediation session. And in some states, the confidentiality of
mediation proceedings is additionally protected by so-called “privilege
laws” that prevent a mediator from testifying in court (or arbitration)
about what was said in mediation. (For more on confidentiality in
mediation, see Chapter 5, Section A.)
Mediation can really save you money if you would otherwise hire a
lawyer for a contingency fee—a percentage (usually between 25% and
40%) of any amount you are awarded. Suppose, for example, you are hit
by a telephone company’s service truck and suffer several serious injuries.
If you sue the company and a jury awards you $100,000, your lawyer
would take at least $30,000, leaving you $70,000. In addition to paying
your medical bills (or reimbursing your medical provider), you would
need to subtract from that amount many more thousands of dollars for
court fees, as well as the costs of investigating and bringing physicians
and other experts into court to testify. By contrast, if you can mediate the
case without a lawyer, you could settle for a little less—say $80,000—and
still end up with more than you would have taken home in a lawsuit. You
won’t have to pay attorney fees, court costs, or expert witness fees (al-
though you will have to chip in for your share of the mediation fee).
and behaviors with the idea of heading off repeat problems. In many
areas, these types of cases—which are often referred to mediation by
prosecutors or judges—make up a significant part of the caseload at
community mediation centers.
maximum amount for which you can sue in small claims court varies
from state to state. In most states, it’s between $2,500 and $5,000.
But small claims judges—like most other judges—have neither the
time nor the authority to help disputing parties resolve personal differ-
ences, which means that interpersonal disputes often are not successfully
resolved in small claims court. In addition, crowded small claims courts
are not usually good at dealing with complicated fact situations that can
take a long time to sort out. If you’re planning a long argument over
what the general contractor told your spouse about whether the electri-
cian would move the electrical jacks before installing the radiant heaters,
small claims court is probably not the place to do it.
In addition, small claims court offers no privacy from the public or
the press, meaning that even small disputes can sometimes be blown
way out of proportion. And some small claims courts require the parties
to at least try some form of alternative dispute resolution—such as
mediation—before their lawsuit can proceed. This means that you may
decide to take your case to small claims court, only to find yourself
mediating. For more on information on bringing a case in small claims
court, see Everybody’s Guide to Small Claims Court (California and Na-
tional Editions), by Ralph Warner (Nolo).
Choosing a Mediator
I f you decide to file a lawsuit (or you are sued by someone else),
detailed rules dictate the state, county, and courthouse where you’ll have
to wage your court battle. In contrast, you will often be free to choose
where and by whom you will have your case mediated. Depending on
where you live and what kind of dispute you are involved in, there may
be several mediators or mediation services available. This chapter will
help you choose the right mediator for your dispute.
As you evaluate the available options, you might have some or all of
these goals in mind:
• Convincing the other party to mediate. You can’t mediate alone. Therefore, if
the other party is reluctant to mediate, you’ll want to select a mediator
or mediation service that will be able to get that party to the table. Often,
mediation services do a better job than independent mediators at getting
reluctant parties to mediate. These services usually have staff members
(often called “case managers”) whose job includes explaining mediation
to the parties and persuading them to give it a try. Services are also more
likely to have printed materials available that will explain the process
and assuage the concerns of a reluctant party.
• Finding a mediator with the right combination of skills. The success of your media-
tion may well be determined by the skills your mediator brings to the
table. Two types of skills are necessary: process skills (the ability to
conduct an effective mediation) and subject-matter knowledge (an under-
standing of the particular issues in dispute, sometimes including technical
information). In complex cases, such as business disputes involving
multiple issues and parties, you’ll want a mediator with the process skills
to handle a complicated case and the subject-matter know-how to under-
stand the legal and technical aspects of the dispute. Often, a private
mediation service is the best place to find mediators who specialize in
particular subjects (such as intellectual property or employment issues).
3/4 MEDIATE, DON’T LITIGATE
• Getting the most bang for your buck. Obviously, you will want to pay as little as
possible for the services you need. If you will mediate at a community
mediation center or through a court-connected program, cost won’t be an
issue—these services are generally available free or for a nominal fee. But
if you hire an independent mediator or use a private mediation service,
you should compare prices and quality of service. For example, if the
same mediator works occasionally for a mediation service and also has a
private practice, you’ll probably find that you can hire the mediator
directly for a much lower rate than you would pay to use the same
mediator through a mediation service. The smaller your case, the more
you need to worry about cost—after all, you don’t want the costs of
mediation to eat up all of the money you hope to gain (or stand to lose).
This chapter will help you meet these goals while finding a mediator
who can help you resolve your dispute. Here, we explain the types of
mediators and mediation services available (Section A), how to gather
leads to mediators and services you may want to use (Section B), how to
choose the right mediation service (Section C) and how to choose the
right mediator—either a mediator in private practice or one of the
mediators available through a mediation service (Section D).
a. Civil Cases
Some court programs handle a variety of civil (noncriminal) cases.
Under these programs, people who file lawsuits are required or strongly
encouraged to try mediation before they can proceed. Nearly every state
today has some kind of court-connected mediation program. Some
states require parties to try mediation; others require only that parties
receive information about the availability of mediation, but do not
require them to pursue it.
In some states, the court itself provides the parties with conference
rooms and mediators. In others, judges or court clerks simply instruct
the parties to pick a mediator from a list of “qualified” mediators or to go
out and find their own mediator.
If your case is already in court, call the clerk of the court to find out
if there is a mediation program available, or ask your attorney to check
on this. If your case is not in court, a court-based program won’t be an
option for you.
Don’t file a court case just to be referred to mediation. It’s ordinarily not
worth incurring the hostility, fees, and delays that come with
filing a lawsuit just to have access to a court-connected mediation
program. Sometimes, however, you won’t have any other choice. If the
other party refuses to negotiate or mediate (which means that you must
either sue or forget about pursuing your case), you may want to go
ahead with your lawsuit—and plan to ask the judge to refer your dispute
Choosing a Mediator 3 / 11
b. Criminal Cases
Mediation programs established by local public prosecutors or district
attorneys are fairly similar to those established by courts. But unlike
court programs, which usually focus on civil disputes, prosecutor
programs are designed to resolve minor criminal complaints.
Programs around the country differ, but typically the mediators will
be either full-time court employees with backgrounds in social services
or criminal justice, or part-time mediators with legal backgrounds.
Mediators who work at this type of program usually handle a high
volume of cases, most of which present intense personal grievances. If
they are able to continue mediating these kinds of cases successfully for
more than a few months without burning out, they probably have
developed pretty good mediation skills.
• Institute for Christian Conciliation. If you would like your dispute medi-
ated based on Christian biblical principles of conflict resolution, you
may want to contact the Institute for Christian Conciliation, a
national group with members and affiliated organizations around the
country. The Institute trains and certifies its own mediators, who
come from many professional and work backgrounds, including
lawyers, mental health counselors, clergy, homemakers, and
business people. For information, contact: Institute for Christian
Conciliation, 1537 Avenue D, Suite 352, Billings, MT 59102
406-256-1583; www.Hispeace.org.
B. Gathering Leads
Now that you know what types of mediators and mediation services
might be available to you, it’s time to start your search. The first step in
finding a good mediator is to gather the names of some mediators or
mediation services in your area. Once you’ve got some leads, you can
consider the strengths and weaknesses of each option. This section
explains where to find out about local mediators and services.
4. Yellow Pages
Check under “mediation” or “dispute resolution.” Most mediation
services, as well as some independent mediators in private practice, will
have some kind of brochure to send you with descriptive information
about their services.
Once you’ve had a chance to look over their materials, call them
back to ask some or all of the following questions. The answers you get
should help you figure out whether the service can handle your case.
For example, does the service use only retired judges? Only lawyers?
Or do they have a mix of mediators, including some full-time career
mediators? Are their mediators trained? Who trains them? Is the training
minimal (they read a pamphlet and watch a videotape) or extensive (25-
40 hours)? How many cases a year does a typical member of their panel
mediate: just a few, or dozens? For how long have most of them been
mediating?
Do they have mediators available with special areas of knowledge
and expertise (if applicable to your case) such as engineers (mechanical,
electrical, civil), physicians, business people, real estate experts, or
family counselors?
D. Selecting a Mediator
Whether you are using a mediation service or a mediator in private
practice, you will want to select a mediator who has the necessary skills,
techniques, training, and demeanor to help you resolve your dispute.
This section describes some common selection methods, qualities you
should look for in a mediator, and questions to ask prospective media-
tors that will help you make your choice.
Using more than one mediator. Many mediators prefer to work alone,
and are well able to handle cases by themselves. Some mediators
will offer you the option of involving an additional mediator in your
case—often a therapist or someone with mediation skills and expertise
in a subject relevant to your situation.
There are pros and cons to using a second mediator. On the negative
side, using a second mediator can increase costs and complicate sched-
uling. On the positive side, two heads can definitely be better than one
when it comes to working with difficult personalities and using different
methods to move things forward, or when your case is particularly
complex or involves a large number of people. In some types of cases,
having two mediators can even be more efficient and cost-effective—for
example, in a case involving difficult interpersonal relationships as well
as business concerns, a lawyer-mediator and a therapist-mediator
working together can help resolve the practical business matters and also
address patterns of communication and emotional dynamics that
contributed to the conflict. In this situation, although the mediation
sessions might be more expensive, the process may also move more
quickly, and the resolution may last longer and prove more satisfying.
By Appointment
At some community mediation centers, the staff will simply appoint a
mediator (or more than one) from their panel without asking for your
input. Many court-connected mediation programs also run this way.
Typically, the case manager will look over the file to determine
whether your case presents any special requirements for a mediator,
such as foreign language skills or technical knowledge. If you think your
case requires a mediator with special expertise, make this request to the
staff. The case manager should try to pick someone from their panel
who has the qualifications you need.
You could also request a mediator of a particular ethnicity or gender,
if you can reasonably show that this would help facilitate your mediation.
For example, if two African-Americans or two gay people involved in an
interpersonal dispute felt strongly they could only discuss the intricacies
of their dispute with someone from their community, many mediation
services would appoint a mediator who has the appropriate background.
If the case presents no special mediator needs, the case manager will
assign someone from the panel, either at random or in rotation, in an
effort to give every mediator on the panel an opportunity to handle some
cases. Before making the assignment, the case manager will probably call
the mediator to ask if there are any reasons he should not be assigned
the case, such as a conflict of interest or a scheduling problem.
3 / 24 MEDIATE, DON’T LITIGATE
Ranking by Preference
Some mediation services will ask you to rank, in order of preference, the
four or five people on the list whom you would most like as a mediator
for your case. The case manager then appoints the one ranked highest by
both parties. This method is favored by some private dispute resolution
firms because it is customer-friendly—it gives both parties some mea-
sure of control over mediator selection. On the other hand, this process
can be more cumbersome than others: If the names you and the other
side select do not overlap, you may have to repeat the process.
Choosing a Mediator 3 / 25
2. Mediator Qualifications
Here are some of the factors you should consider when deciding which
mediator to choose, whether you are looking at mediator in private
practice or considering the mediators on a mediation service’s panel.
a. Skill Level
Generally, a mediator’s skill at helping people work through problems
depends on training, experience, and the mediator’s own intuitive
peacemaking abilities. While it’s tough to measure someone’s intuitive
ability, you can learn whether a mediator has adequate training and
experience—and these should be the first questions you ask of any
mediator.
Some people who call themselves mediators have little training or experience.
This is particularly likely to be true of former judges and lawyers,
some of whom see mediation as a sort of quasi-retirement from the legal
profession. These mediators may be quite skilled as litigators or decision
makers, but often lack the special abilities and people skills necessary to
mediate cases. If you are considering using a retired judge or lawyer as a
mediator, be sure to ask about mediation training and experience—not
just prominence in the community or experience in the courtroom.
Choosing a Mediator 3 / 27
Training
Most good, basic mediator training programs involve between 25-40
hours of classroom time and include lectures, demonstrations, videos,
and role-playing exercises. Training topics include the psychology of
human conflict and conflict resolution, negotiation theory, laws of
mediation and confidentiality, mediator ethics, and the practical steps
involved in conducting a typical mediation session. Of course, training
quality varies with the skills of the trainer, the sponsoring organization,
and the group of people being trained. But if the mediator you are
considering attended a training program of 25 hours or more, you can
probably assume—regardless of the specific training organization—that
the course adequately covered the basics.
Experience
It takes practice to mediate well. This is not to say that a person who has
successfully completed a mediator training course could not do a good
job for you right out of the box, but all things being equal, it makes
sense to pick a mediator who has some experience.
Some people mediate full time and have handled hundreds of cases;
others—such as practicing attorneys whose names appear on mediation
panels—may only mediate one or two cases a year. Those are the
extremes, of course. In between, there are many well-trained people who
mediate with some regularity; even mediating one case a month will let a
person build up skills over time.
You should also find out how much experience the mediator has
had with cases like yours. For example, if you are ending a relationship
and have to work out property division, child custody, and ownership of
a business with your former partner, you will want a mediator who has
considerable experience handling family disputes. A mediator who has
handled hundreds of cases may be a poor choice if most of those cases
involved monetary disputes between auto accident victims and insur-
ance companies and yours is a family matter.
Similarly, special skills are required to mediate a case with multiple
parties. A mediator who is dealing with three or more parties will have
to work harder to maintain order, give everyone an opportunity to
speak, and keep the discussion moving forward. If your case involves
multiple parties, you should select a mediator who has experience with
these kinds of cases.
b. Professional Affiliations
Another way to size up a mediator is to ask about membership in
professional mediator organizations. Because most professional groups
have no fixed requirements for membership (other than paying dues),
membership by itself won’t tell you how skilled a mediator is. However,
a person who is willing to pay for memberships in two or three profes-
sional groups probably wants to keep up with developments in the field.
One mediation group, the Association for Conflict Resolution (ACR),
has an additional membership requirement. This national organization
requires those who join as “practitioners” to have at least three years (or
more than 200 hours) of experience as a mediator or arbitrator and at
least 40 hours of training (or the equivalent). Those who join as “mem-
bers” don’t have to meet these requirements. ACR and other professional
mediator groups are listed in Appendix C.
c. Expertise
For some types of cases, such as small claims, simple contract matters, or
neighborhood disputes, any well-trained, experienced mediator should
be able to handle the problem adequately. But for more involved cases,
you will usually be better off with a mediator who knows about the
issues and options available in that type of dispute. For example, if your
case is against a bank over the way finance charges were levied on an
overdue portion of a commercial real estate mortgage, it will be helpful to
have a mediator who has a basic understanding of the financial aspects of
the dispute. This way, you won’t have to spend the beginning of your
mediation educating the mediator. Similarly, if your dispute involves the
breakup of a small business partnership, you should look for a mediator
who is experienced in helping small businesses arrive at creative solu-
tions. Subject areas in which mediators often specialize include:
• divorce and family
• business
3 / 30 MEDIATE, DON’T LITIGATE
• employment
• construction, and
Facilitative or Evaluative?
Some mediators are traditional, almost purist, in their approach to
mediating. They see themselves as “facilitators” whose primary job is to
be good and patient listeners who can help the parties (1) communicate,
(2) see the strengths and weaknesses of each side’s position, and (3)
think creatively about ideas for settlement. These mediators will not tell
the parties what a case is worth or how they think it should be settled.
“Evaluative” mediators, on the other hand, will take a more direct,
or activist approach. For example, they might tell the parties how they
think a judge or jury would decide a case, and they may propose con-
crete settlement proposals for the parties to consider.
Do you want a mediator who is more facilitative or one who will
plunge in and propose a specific resolution? In many cases, it won’t
matter; either type will do a good job. But in some cases, you may
sensibly have a preference. For example, many business executives seem
to favor evaluative mediators; because the executives themselves are
used to weighing alternatives and making decisions, they often have
little patience for long drawn-out proceedings. On the other hand, if
your dispute concerns an interpersonal problem—such as a painful feud
with a relative, long-term friend, or neighbor—you may want a mediator
who will be patient enough to help you arrive at your own solution, not
one who will presume to suggest how you should resolve things.
If you are selecting a mediator from a mediation service’s panel,
discuss your preference with the case manager. Because the terms
“facilitative” and “evaluative” are not universally used, you may need to
describe the type of mediator you want either as one who will actively
3 / 32 MEDIATE, DON’T LITIGATE
appraise the case and propose solutions, or one who will refrain from
giving an opinion and instead focus on helping you and the other party
work toward your own solutions.
tor who will be willing to intervene to steer you away from making a bad
deal, discuss this preference with the case manager or the independent
mediator.
Impartiality
You want an impartial mediator, not one who will favor one party or the
other. You need not be as concerned about mediator bias as you might
be with an arbitrator or judge, who has the power to impose a decision
(unless the mediator has the authority to make a recommendation to a
judge). Nevertheless, a biased mediator could steer you toward settle-
ment terms tilted in the other side’s favor.
What would constitute bias or partiality? It can be any relationship,
experience, or set of beliefs that might cause the mediator to favor one
side over the other. For example, you probably would not want a
mediator who has a social, family, or business relationship with the
other party, or a lawyer-mediator who works in the same law firm as the
one that represents the other party on this or other cases.
There are other types of biases you may wish to consider. For
instance, if you are a tenant in a landlord-tenant dispute, you may have
qualms about a mediator who is a landlord. Or, if you are a homeowner
mediating against a contractor, a contractor mediator may be suspect in
your eyes. Although you should feel free to raise these types of concerns
with the case manager or mediator, remember that a mediator with a
good grasp of the subject matter can often work much more efficiently,
and that such a person will generally have to come from one side of the
dispute or the other. On balance, the most sensible approach is to assess
the mediator’s character rather than worry about these types of side
issues—especially because you, rather than the mediator, are in control
of the final decision.
3 / 34 MEDIATE, DON’T LITIGATE
Mediator’s Personality
You may be spending many hours in private and sensitive discussions
with your mediator. It follows that, if possible, you’ll want to select a
mediator with whom you feel personally comfortable. Working with a
mediator can be like working with a music teacher, therapist, or clergy-
man—if you don’t connect with the person on an intuitive level, you’re
better off picking someone else.
c. Check References
You can learn a lot about a mediator’s style and demeanor from talking to
past clients, particularly those who had a dispute similar to your own.
Some mediation services and independent mediators may hesitate to
provide names of past customers out of concern for their privacy. In
practice, however, most satisfied mediation customers will be glad to
discuss their experience as long as no confidential information about their
case is disclosed. When you ask for references for a particular mediator,
3 / 36 MEDIATE, DON’T LITIGATE
explain that you just want to discuss how the mediator conducted the
mediation, not the details of the case. With this understanding, the case
manager should be willing to find a few past users who will talk to you.
T his chapter discusses when and how to begin your mediation. For
the most part, we assume that you will be the person initiating the effort
to mediate, which means it will be up to you to start the process with a
mediator or mediation service.
Sometimes, it’s a good idea to bring in a more objective person. If the original
disputants feel extremely bitter towards each other or have really
gotten stuck in their bargaining positions, they may find it difficult to
mediate successfully. In these situations, a manager or lawyer may take a
more dispassionate view and be better able to work out a reasonable
settlement in mediation.
Should you just contact the mediation service without even bringing
up the subject of mediating with the other party? This may be tempting,
but it overlooks an important fact of human behavior: people don’t like
to be surprised. If you call a mediation service without telling the other
party, she may be extremely suspicious of your having initiated a process
without her knowledge. For example, she might jump to the conclusion
that you have said negative things about her or that you have “influence”
with the particular mediation service. If she is unfamiliar with media-
tion, she may even accuse you of plotting to bypass her legal rights.
That’s why it’s a good idea to at least let the other party know that you’ll
be contacting a mediation service.
Your letter should let the other side know that you want to mediate,
without saying anything that is likely to trigger a defensive response.
Here are some suggestions that will help you set the right tone:
• State that you would like to try mediation and list some reasons
why. For example:
✓ “If mediation works, we can both save a lot of time, aggravation,
and money.”
✓ “ Mediation is quick and inexpensive, and we can do it without
lawyers.”
✓ “Mediation carries no risk because the mediator is neutral and
has no power to impose a decision on us.”
• Do not try to persuade the other person to mediate—leave that up to
the mediation service.
• Do not presume to say what the other person thinks or wants. For
example, it’s fine to say, “I want to mediate because I believe media-
tion is an excellent way to solve disputes.” But it’s a mistake to say,
“You probably don’t know much about mediation” or “I doubt you
will agree to this....” A good way to steer clear of this problem is
simply to avoid using the word “you.”
• Never threaten the other person. For example do not write, “If you
don’t agree to mediation, I will have no recourse but to commence a
lawsuit.”
Starting Your Mediation Case 4 / 11
• State clearly that you have no personal connection with the media-
tion service, other than contacting them for the purposes of this
mediation. The other party may not believe you, but at least you will
have raised the issue and stated the facts. If the other person wants
more input in the selection process, you can offer to use another
mediation service.
• Let the other person know that the mediation service will be in
touch.
• Let the other person know that you are using this book and offer to
provide a copy so that you can both be on the “same page” regarding
mediation. If the cost of the book is a problem, find out whether it is
available in your local public library.
Here’s a sample letter that will give you some ideas for drafting your
own:
EXAMPLE: Mike and Ron are co-owners of Big Slice Pizza, Inc., a restaurant.
For some time, they have had serious arguments over various aspects of
running their business, including pricing meals and dealing with employees.
Each owns half the company. If they can’t work out their differences or decide
who will buy the other out, the business may fail. They have had several face-
to-face conversations in an effort to negotiate a settlement, without success.
Mike has read several books on dispute resolution and believes the time is right
to mediate. After some investigation, he has identified a local private dispute
resolution company, Settle It Now, Inc., as a good mediation service to handle
the case. Mike and Ron have never discussed mediation and Mike doesn’t
know if Ron will be willing to give mediation a try. To start the process, Mike
writes the following letter to Ron:
4 / 12 MEDIATE, DON’T LITIGATE
Dear Ron:
I am writing to let you know that I have given our situation at Big Slice Pizza a lot of
thought and have decided that one way we can both try to get this thing resolved
without spending a huge amount of time and a fortune on lawyers is to try mediation.
I have read that mediation is a simple and straightforward way for people to try to
work out a solution to many different kinds of disputes. As I understand it, media-
tion is quick, we don’t need lawyers, it’s fairly inexpensive, and no decisions or
actions can be imposed on either of us unless we both freely agree. For starters, we
don’t need to make any commitment short of showing up and sitting down with a
neutral third person who will try to help us work out a solution. I’m willing to give
it a try if you are.
As a first step, I’ve asked Settle It Now, Inc., a private dispute resolution company
here in town, to send you some information about their service. I don’t have any
personal connection with this company; they just seem to have experience working
with businesses like ours. If for any reason you don’t like Settle It Now, I’m open to
your suggestions for another mediation service for us to try.
Yours,
Mike
Starting Your Mediation Case 4 / 13
because the shrubbery that was guaranteed for three years died after
three months, it’s better to describe this as “dispute over shrubbery
plantings” than as “breach of contract.” Plain words are not only easier to
understand; they are also less likely to push the other side away from the
bargaining table and into a lawyer’s office.
b. Desired Remedy
When describing the result you wish to achieve, it’s best to be straight-
forward. These statements are all fine, assuming the dispute involves
money or property:
• “Return of the following property” (include a list with clear descriptions)
d. Additional Parties
The form may ask if there are additional parties whom the mediation
service should contact. This is an important question. To be successful,
mediation needs to be inclusive—that is, everyone with a significant
stake in the outcome of the dispute should be invited to participate. An
agreement that excludes an important stakeholder will be of little value
if that person is in a position to undermine it. For example, assume you
are a real estate agent who lost a commission when your clients backed
out of a signed purchase offer after cracks were found in the home’s
chimney, even though your clients’ offer was not contingent on an
inspection. Legally, your clients might be obligated to buy the house.
However, to avoid cost, delays, and damage to your client relationship,
you instead would like to go to mediation to see if the deal can be put
Starting Your Mediation Case 4 / 17
back together—maybe by you, the seller’s agent, and the sellers all
contributing some money towards repairing the chimney. For this to
work, you will need everyone at the mediation—not only your former
clients, but also the sellers and their agent.
If all goes as you hope, the case manager will soon report good news:
the other side is willing and ready to mediate. If so, you can now select a
mediator and schedule the mediation. Often, however, the case manager
will report that the other party’s response is a pretty firm “maybe.” Here
is a short list of objections or issues the other party might raise:
• “I might mediate, but only if you pay all the fees, since it was your
idea.”
Mediation services vary in how long they will keep trying to get a
reluctant party to agree to mediate. Community mediation centers, with
limited funding and staff, may make just one or two follow-up calls to
the other party before marking your case “party refuses to mediate” and
closing the file. Private dispute resolution companies, on the other hand,
may keep a case manager working much longer to try to bring a dispute
to mediation. They are highly motivated to do so because private firms
generate most of their income from hourly fees charged during the
actual mediation. Independent mediators in private practice, as noted
earlier, generally prefer not to get involved in trying to persuade a
reluctant party to mediate. Faced with hesitation from the other side,
most independent mediators will probably ask you to try on your own
to bring the other person to the table.
party off (or convince her to launch a preemptive strike and sue you
first)! And in some states, it’s illegal to threaten someone with litigation
for failing to agree to certain demands.
If you file a lawsuit but still want to mediate, tell the judge that you
would prefer to try resolving the dispute through mediation. (In some
courts, your case may be sent to mediation automatically.) Many judges
will be glad to get your case off their docket and will strongly suggest
that the other party try mediation. Sometimes the judge will even go a
step farther and refer you both to a local mediation service. In this
context, it will often be difficult for the other side to resist the judge’s
suggestion—after all, the same judge will decide the case.
There are some obvious disadvantages to this, however. First, you
have to pay court filing fees, which may amount to several hundred
dollars, plus an attorney’s fee (unless you represent yourself). Second, a
party who agrees to mediate only under great pressure may not come to
the mediation with an open mind. Third, a contested court case might
result in both parties becoming too angry to mediate. Despite these
drawbacks, if you are intent on going to mediation, this tactic might get
you there.
A variation on this tactic can also be used in disputes involving
minor criminal offenses. Let’s assume, for example, that you are troubled
by excessive noise from a neighbor’s house, and your neighbor has
refused your invitation to mediate. At this point, you can file a com-
plaint about the noise with the police, and tell the responding officer (or
the prosecutor, if you get that far) that you would like to mediate. There
is a good chance the police will be delighted to divert the case from the
criminal justice system to a court-connected mediation program or
community mediation center. Now, when the mediation program
contacts your neighbor, the letter will state that the dispute has been
referred by the police. Your chances of getting your neighbor to mediate
should markedly improve. ■
CHAPTER 5
• decide whether anyone should attend the mediation with you (and
make the necessary arrangements)
• identify your goals, including both what you hope to achieve and
the minimum you will accept, and
A. Review Paperwork
Begin your preparation by carefully reading the rules that will govern
your mediation. Most mediators or mediation services will give you a set
of written mediation rules. You may also receive a “Notice of Mediation”
and an “Agreement to Mediate.”
Leave a paper trail for important messages. If the rules do not tell you
how to send an important notice to the mediator or the other
party, play it safe and put the notice in writing. For example, if you use
Preparing for Your Mediation 5/5
the telephone or email, be sure to follow up with a fax or letter. This will
give you written proof that you sent the notice.
• Mediation Procedures. The rules will probably explain how the media-
tion will be conducted. Will the mediator hold only joint sessions
where everyone meets together, or will the mediator also have
separate meetings with each party (called “private caucuses”)?
Caucuses are common in business mediation, but less frequent in
divorce and family mediation. (For more on caucuses, see Chapter
6, Section D.) Knowing whether caucuses will be used can help you
plan your strategy. For example, if you have an idea of how your
dispute could be settled, you might want to try it out on the media-
tor during private caucus before telling the other party at a joint
session. But if you know you won’t be having caucuses, then you
will have to think about how and when to present the idea to the
other side directly.
• Evidence Rules. Strict courtroom rules that limit the types of evidence
you can use don’t apply in mediation. This makes sense—after all,
the mediator is not a judge but simply a person trying to help you
reach an agreement. Nevertheless, because parties sometimes want
to offer testimony from witnesses, or present or refer to documents
or other written reports (lawyers call these “exhibits”), mediation
rules typically address this issue. Some leave it up to the mediator to
5/6 MEDIATE, DON’T LITIGATE
2. Other Paperwork
After your mediation has been scheduled, the mediator or mediation
service will probably send you a document called a “Notice of Mediation”
(sometimes “Hearing Notice”) confirming the date, time, and place of
your mediation. Be sure these details are as you agreed. If you did not set
a date, make sure that the assigned date is convenient for you; if the date
won’t work, contact the mediator or service right away to reschedule.
3. Confidentiality Protections
During a mediation, you may want to make deeply personal statements
or share confidential information. For example, if you’re a business
owner mediating a claim of sexual harassment with a former employee,
you might be tempted to share information about exciting new products
the company is about to introduce, to encourage the person to settle and
take a new job with your company. Or in a case in which you and a
business partner are trying to rebuild trust and save the company, you
may be called on to acknowledge your own past mishandling of com-
pany finances or business opportunities. (Disclosing secrets can be an
especially relevant issue in divorce cases. For more on confidentiality in
divorce and family mediation, see Chapter 10.)
Confidentiality is essential to a successful mediation. Without it,
many people would sensibly not agree to mediate (and certainly would
not want to confide in the mediator). Accordingly, as the practice of
mediation has grown, so too have the legal and ethical protections
designed to make mediation as confidential as possible. These protec-
tions include:
• Mediation Rules. Most mediation rules require the mediator and the
parties to keep private everything said during the session. These
rules often provide that if the case ends up in court, neither party
may call the mediator to testify about what was said in the media-
tion. Unfortunately, the consequences of breaking these rules—
particularly by the disputants themselves—are not entirely clear. For
example, there’s really no practical way for you to prevent the other
party from telling his neighbor or brother-in-law what went on
during your mediation.
EXAMPLE: Jim broke his back and leg when he fell on a rotted stair at a restau-
rant. Jim and the insurance company for the restaurant went to mediation.
During mediation, Jim offered to settle if the insurance company would pay
him $40,000 for his injuries, but the insurance company refused and the
mediation ended without a settlement. Now, Jim is suing the insurance
company and asking a jury to award him $100,000. Under a state law that is
comparable to Federal Evidence Rule 408, the insurance company may not
tell the jury that Jim was willing to settle for less than half that amount in
mediation.
Some mediators have a duty to report criminal activity. Some federal and
state laws require people in helping professions (such as thera-
pists, social workers, and often mediators) to report information they
learn about felonies, family abuse, and other serious crimes.
5 / 10 MEDIATE, DON’T LITIGATE
PROTECTIVE ORDERS
In some cases, you may need to get an order from the court to protect
trade secrets or other confidential business information that is critical to
your mediation. This usually comes up only if you already have a court
case going and your case involves proprietary information that you want
to keep private (so business competitors don’t get hold of it), but the
information absolutely must be revealed and discussed in order for the
mediation to be effective. In this situation, you can agree in advance that
information you share during the mediation will be subject to a court
order of confidentiality, and that there will be penalties for disclosing it
outside of mediation. You can then submit the agreement to the judge
where your lawsuit is pending. After the judge signs the protective
order, everyone involved in the mediation will be legally required to
maintain the confidentiality of the information covered by the order.
mediation is to find a solution that you and the other party both find
acceptable—not to prove that you are right or to sell your point of view.
Unlike a courtroom trial, mediation allows you flexibility to come up
with creative, workable solutions.
EXAMPLE 1: House painter Tom paints the interior of homeowner Sally’s house
but is not paid for his labor. Tom sues Sally. The law would usually require
Sally to pay Tom according to the terms of their contract—unless, of course,
Tom had seriously breached the contract. In court, Tom’s goal would be to
prove that the contract had been carried out and to get a judgment for the
money owed. In other words, Tom’s goal is to establish what happened in the
past and then rely on the law to reward him appropriately.
EXAMPLE 2: Same circumstances, but now Tom and Sally decide to mediate.
Here they face an entirely different situation. Because they are not limited by
the law or legal procedures, there are any number of ways they can resolve the
dispute. For example, if Sally didn’t pay because she believes that Tom did a
poor job, she might agree to pay Tom if he does some of the work again. Or,
Tom might agree to accept only part of what he is owed, if Sally agrees to let
him photograph her living room to use in his brochure. Or, Tom and Sally
might agree that Sally will pay Tom in installments, or that part of the
payment will be in cash and the rest will be in services (for example, if Sally
owns a car repair garage, she might agree to repair Tom’s truck).
If you need more than a consultation, consider hiring a law coach. If you want
a lawyer to help you figure out what your case is worth, help you
prepare for mediation in other ways, and be available for consultation
during your mediation, consider using a self-help law coach. A law
coach is a lawyer who does not represent you but is willing to provide
you legal advice as you handle the case on your own. The coach should
charge you only for time spent consulting with you. Some lawyers are
willing to coach self-helpers; others are not. (For more on finding and
using a self-help law coach, see Chapter 13.)
Preparing for Your Mediation 5 / 13
What could you win (or lose) if your case went to court?
If your dispute involves money, how much might a judge or jury award to you—or require you
to pay?
How much might it cost, in legal fees, court costs, and other expenses, to bring or defend a
lawsuit?
you might want to ask what would happen if you filed charges
against the club for violating the noise ordinance, or whether others
have succeeded in forcing clubs to turn down the volume.
What information could an expert provide that might be helpful in understanding or resolving
your dispute?
3. Create a Timeline
A useful way to help identify goals for mediation is to examine your
dispute in terms of time—past, present, and future. This approach can
help you understand your dispute from different perspectives and
prompt you to think of a range of possible remedies that might satisfy
your needs.
5 / 16 MEDIATE, DON’T LITIGATE
Exercise 3: Timeline
My goals for avoiding or coping with the effects of the dispute in the future:
Preparing for Your Mediation 5 / 17
EXAMPLE: Ted wants to erect a six-foot solid wood fence between his backyard
and Joan’s, a plan that Joan opposes for aesthetic reasons. Ted’s desire (want)
for a fence reflects a need for privacy. But privacy can be achieved in many
ways. A hedge, a stone wall, or perhaps even a porch or patio screen can also
provide privacy. If Ted and Joan can see past Ted’s wants (a fence) and focus
on his needs (privacy), they may be able to come up with alternative, aestheti-
cally pleasing ways to separate their backyards.
It’s usually fairly easy to identify your wants: think of the demands
or requests you made in your last phone call or impassioned letter to the
other party—for example, a sum of money, the right to live in a rental
house, or getting your old job back.
Your real needs may be harder to identify. To help you get started,
here is a short list of needs that are often reflected in disputes:
• emotional security
• financial security
• safety
• privacy
5 / 18 MEDIATE, DON’T LITIGATE
• recognition
• vindication
It is also useful to try to identify the other party’s wants and needs
and then compare them with your own. (See the exercise below.) You
may discover, for example, that some of your needs overlap (avoidance
of legal fees, protecting reputations, working together in the future) and
that others don’t necessarily conflict (economic security for one; recogni-
tion for the other). This information can provide a more realistic sense of
possible outcomes for your mediation.
As the Rolling Stones once said, “You can’t always get what you want…
but if you try sometime, you just might find, you get what you need.”
List your stated wants. (What have you said you want out of this dispute?)
List the economic, emotional, relational, and other needs that underlie your stated wants in this
dispute.
What are the other party’s wants? (Do the best you can with this one. One good place to start
is with any formal written or oral demand or offer to settle the other side has made.)
What do you think might be some of the other party’s important underlying needs?
In the table below, list your own and the other party’s wants and needs.
5 / 20 MEDIATE, DON’T LITIGATE
Can any of the other party’s needs be satisfied without harm or cost to you?
EXAMPLE: Edna was hired to do some interior painting at a private home. The
contract called for Edna to do $5,000 worth of painting, but as the work
began, the homeowner kept insisting on small changes that took extra time and
required a different kind of paint. Then, when just over half the work was
done, the homeowner criticized Edna’s work and refused to pay. Edna thinks
that her work was fine and wants full payment. After several acrimonious
conversations, Edna and the homeowner agree to mediate.
After checking with a friend who is a lawyer, discussing the situation with a
couple of other painters, and doing both a timeline (Exercise 3) and wants &
needs analysis (Exercise 4), Edna identifies the following major goals:
Money: $3,000 for work completed, plus $750 for extra labor and materials
required by homeowner’s changes; be allowed to finish job and be paid balance
of $2,000 as per contract.
Edna then breaks these goals down into “best,” “adequate,” and “minimum
acceptable” results.
Best possible outcome: I get paid $3,750 immediately for work already done; I’m
allowed to finish job with no further hassle (maybe half the money up front
and a written agreement on how the homeowner wants the new work done); I
get to bid on Phase II; the homeowner acknowledges that the work I’ve done is
of high quality and is willing to recommend me to others who may call for a
reference; and this dispute ends in a friendly way so that we can see each other
at church without feeling awkward or uncomfortable.
Adequate outcome: I get paid $3,000 immediately for work already done; I’m
allowed to finish the job (maybe half the money up front and a written
agreement on how the homeowner wants the new work done); and a chance to
bid on Phase II (if I decide after the mediation that I am willing to do more
work for this person). We agree not to badmouth each other in the future.
Minimum acceptable outcome (Bottom line): I get paid $3,000 immediately for work
done. We agree not to badmouth each other in the future.
A solution may emerge that does not exactly meet Edna’s bottom line. For
example, suppose the homeowner adamantly refuses to pay anything for the work
Edna did because he claims she used the wrong color. However, because Edna
otherwise did excellent work, he will agree to pay her promptly if she redoes the
painting (the prep wouldn’t have to be redone) and hire her for the much bigger
job of painting the interior of the office section at a new factory he owns. Painting
at the factory would be done during the coming winter, Edna’s slow season, and
she would receive a generous up front deposit. If the factory painting goes well,
she would stand to make $15,000—way more than the $3,000 in immediate cash
she had identified as her bottom line. Obviously, in this case, Edna may choose to
change her bottom line and consider doing the required repainting.
Preparing for Your Mediation 5 / 23
Even though Edna may ultimately choose to change her bottom line, that
doesn’t mean it was wasted effort to determine it in the first place. It will
provide her with a clear and thoughtful measurement against which to
evaluate any new proposal, and act as a useful brake on any tendency she
might have to agree to a solution that doesn’t really meet her needs.
C. Gather Evidence
Before the mediation, you’ll want to spend some time thinking about
what types of evidence you can use to make your points. If the word
“evidence” conjures up images of Perry Mason shouting “Objection!” set
your mind at ease. The technical legal rules that judges use to decide
what evidence can be admitted at trial do not apply in mediation. Each
party is expected to speak in ordinary English, and no information will
be banned as irrelevant or immaterial, or for some other technical
reason. In short, pretty much anything is grist for the mediation mill.
Because no evidence is excluded, you might think this would make
mediations go on endlessly. Just the opposite is true. With no technical
objections and arguments over what can and can’t be discussed, the
parties say what they want, show what they want, and usually, with the
mediator’s help, move on fairly quickly to try and craft a mutually
acceptable solution.
• help show the other party that her position on an issue is based on a
mistake or misperception
5 / 24 MEDIATE, DON’T LITIGATE
• photographs
• drawings
• maps
• tape recordings
• medical bills
• pay stubs
• receipts
2. Types of Evidence
To best present your position in mediation, you should bring the most
persuasive evidence. The best evidence is objective and unambiguous.
Much of this is just common sense. Think about it—are you more likely
to believe your opponent, who says “My back hurts when I bend kind of
like this,” or a doctor’s report detailing the damage your opponent
suffered to his sixth and seventh vertebrae? In the same way, an invoice
5 / 26 MEDIATE, DON’T LITIGATE
documenting how much you paid to fix your car—and marked “paid”
by the repair shop—will be more persuasive than your statement that
you paid $500 to get your car repaired.
Here are some common types of evidence, from most persuasive to
least:
• Real or Demonstrative Evidence: The actual item in dispute. For example,
the BB gun you claim your neighbor’s child used to shoot your dog;
the shutter with bubbled paint you claim the painter forgot to
prime; the suit from the cleaners, with bleach stains. If you can
bring in the physical item at the heart of the dispute and its condi-
tion supports your argument, it will help others understand the
problem from your point of view.
Evidence Examples
The Problem Good Evidence to Bring
Harassment Your ex-boyfriend grabbed, pushed, and threatened you in public. You
feared for your safety and called the police. The police report on the
incident; a notarized statement from a friend who was with you and saw the
incident; a notarized statement from you current roommate, who has heard
your ex-boyfriend call you repeatedly, late at night; a letter from your doctor
describing how the past incidents of harassment you reported to him and
fear of future problems have affected you (loss of sleep, anxiety, difficulty
concentrating).
Personal Injury While you were backing out of your driveway one morning on your way to
work, a speeding car struck the rear of your car. You suffered injuries to
your back and neck. Photographs showing your injuries; the police report
saying that the other driver was at fault; a live witness or a notarized
statement from a witness who can confirm that the accident wasn’t your
fault; a doctor’s report describing the extent of your injuries; your medical
bills; a written statement from your employer showing wages you lost due
to your absence from work; a copy of your own health insurance statements
showing medical expenses that weren’t covered by insurance.
Property Damage During a high wind, a neighbor’s tree fell onto your house, damaging the
roof, wall, and windows on the upper story. Your neighbor disputes the
extent of the damage, as well as the state of your roof and windows before
the tree hit. Photographs of the damaged areas of your home before and
after the incident; actual repair bills or estimates from contractors who
specialize in home repair; a police report (if you called the police) affirming
your version of events; a statement from your insurance carrier stating or
affirming the cost of repairs.
Business Contract Dispute Your company received a contract to make one million widgets. Halfway
through the job, the buyer told you to change the sizes, then later refused all
shipments. A copy of the original contract and specifications for the widgets;
subsequent memos from the buyer changing the specifications; handwritten
log entries by your assembly supervisor attesting to the quality of widgets as
they came off the line; records of shipment of widgets to the buyer.
Neighborhood Noise A noisy neighbor, who throws loud parties and keeps a barking dog, is
driving you crazy. Tape recordings of the neighbor’s dog barking and of the
rock band that played at the neighbor’s most recent backyard party
(recorded from your bedroom window); a written, notarized statement from
other neighbors about the level of noise; a copy of the page from the town
ordinance stating the noise limits in residential areas during evening hours;
a report on the decibel level reading by an acoustics expert.
Landlord/Tenant Despite repeated requests, the landlord has refused to repair the stairway
leading to the basement in your apartment. Every time you go down to
check you things in storage, you believe you are risking your life. A
photograph showing the dangerous condition caused by rotted boards on
the stairs; a sample rotted board; a copy of your lease stating the landlord’s
duty to repair; a copy of a report by a city housing inspector who responded
to your complaint.
5 / 30 MEDIATE, DON’T LITIGATE
The mediation rules will probably tell you the procedures and
deadlines for submitting the memorandum; if not, look in the notice of
mediation or the mediation agreement. If you can’t figure out whether
you have to submit a memorandum, ask the mediation service or
mediator. If you have the opportunity, it is almost always worthwhile to
submit a memorandum, even in small disputes—you can adjust the
length and complexity of the memo to fit your situation.
If you do exchange memos with the other party, the contents are
subject to the mediation rules on confidentiality. Under most rules, the
other party would not be able to use the information in your memoran-
dum against you in any other proceeding, such as an arbitration or trial.
• Disputed facts and issues. Clearly explain what the dispute is about. For
example, “When I asked Mr. Dowl what he meant by my work being
‘sloppy,’ he said I made too many errors on the Royal Oak account
(1,000 lots of sculpted chair legs). However, my work is always
good and I wasn’t sloppy on the Royal Oak job. I think his real
reason for firing me is that he overheard me talking with other
employees about how we didn’t like working with the cheaper wood
the company has been buying and how it’s unsafe to make furniture
with wood that could easily crack and break. I think I was fired to
keep me from talking about this problem.” After you have explained
the dispute from your point of view, don’t provide a series of
arguments and justifications as to why you are in the right and the
other party is a dishonest so-and-so. Again, the purpose of your
memo is simply to tell the mediator what your dispute is about, not
to show that you are correct and the other side is wrong.
• Desired result. State in general terms what you hope to achieve from
the mediation. For example, “I am coming to mediation because I
Preparing for Your Mediation 5 / 35
want my job back at ABC. I am willing to sue over this if I have to,
but I am willing to try to work out a settlement as long as (1) I get
my job back with no penalties, and (2) Mr. Dowl is no longer my
supervisor.” There is no need to go into great detail or to disclose
your bottom line.
• Attach key documents. To help the mediator prepare for your case,
include copies of any documents that are especially important.
These might include laws, court decisions, contracts, company rules,
insurance policies, leases, and so on. Use a yellow marker or simi-
larly readable highlighter to mark the important passages.
1. Decision Makers
There must be someone at the mediation who has the authority to agree
to a settlement for each side. Obviously, if this is your personal dispute,
you are that person. But in disputes involving businesses or public
entities, it’s not always clear who has the power to sign off on an agree-
ment. It’s important to find this out before the mediation begins. You
don’t want to spend hours working in good faith toward a solution, only
to find out that the people on the other side of the table aren’t autho-
rized to settle the case. In fact, if the other party does not have the
authority to make a settlement on behalf of whatever company or
organization he represents—and cannot quickly get in touch with
someone who does—you should be hesitant to continue the mediation.
5 / 36 MEDIATE, DON’T LITIGATE
If you don’t have ultimate authority, stay in close touch with someone who does.
If you are coming to a mediation as the representative of a large
organization or company, be sure that you have adequate authority. If
not, at least arrange for a decision maker to be available by telephone
during the time the mediation is expected to last (and get a home
telephone number, in case the mediation extends after normal working
hours).
best that they not attend the mediation. On the other hand, if they are in
a position—and have the ill will—to undermine a settlement, they
should probably attend the mediation. Repairing this relationship may
be an essential part of finding a workable solution.
3. Witnesses
In some mediations, disputants are permitted to bring any witnesses
they wish. The purpose of bringing a witness is primarily to support
your version of the facts and your opinion of what a reasonable solution
might be. For example, if your complaint involves a neighbor who keeps
a rusted car in his front yard, you might bring another neighbor to
confirm the unsightly condition of the car and help the other side see
that it really is an eyesore.
In a mediation, you usually do not ask questions of your witnesses.
Instead, the mediator simply invites witnesses to tell what they know
about the dispute. The mediator and the other party may then ask your
witness questions, but the process looks and feels far more like a conver-
sation than a cross-examination.
5 / 38 MEDIATE, DON’T LITIGATE
If you plan to bring a witness, take some time to prepare the person.
Review the points you would like the witness to cover, and be sure that
statement will be helpful to you. Also explain a bit about how mediation
works—knowing that the proceeding is not adversarial should help your
witness avoid coming across as too angry or strident.
Although a good witness can help you arrive at a good settlement,
there can be downsides to bringing witnesses. Even if your witness is not
an “expert” and does not charge you a fee (see below), witnesses usually
slow down the mediation, which increases the mediator fees (if you’re
paying by the hour). In addition, no matter how much time you spend
preparing your witness, you still cannot be sure what will happen if the
mediator or the other party asks a question that you did not anticipate.
The witness could even end up saying something that undermines your
position. For example, if the neighbor says that rusted car in your
neighbor’s yard, though it isn’t pretty, is not as much of a neighborhood
problem as the two old pick-ups you park on the street, you won’t be
too pleased. Also, bringing witnesses can make the other party feel
“ganged up” on, which could reduce the chances for a settlement.
Make sure your neighbor is really your supporter. Talk to any neighbors
whom you plan to bring as a witness about other possible issues
the other side might raise, as these come up fairly often in mediation.
Make sure that the neighbor supports your broader perspective—that is,
that the other party to the mediation is the cause of a neighborhood
problem (and that you are not).
instead of the live testimony. Because you are only using the witness to
try to better explain your position and convince the other side that you
can prove it if necessary, you don’t lose that much by using the state-
ment instead of the person. Also, if you don’t like what the witness says,
you don’t have to use it at all. For example, instead of bringing a neigh-
bor to support your complaint about the neighbor’s rusted car, you
might bring a notarized statement from the witness to that effect, and
also include some color photographs of the car taken from different
angles.
a. Expert Witnesses
Expert witnesses, such as doctors, accountants, investigators, and others
can help show that you would have a strong case if you were to take
your dispute to court or arbitration. This type of witness can be ex-
tremely valuable in situations where a major issue is the dollar value of
an economic loss, but less valuable in neighborhood disputes where
convincing someone to change their conduct is your primary concern.
For example, if your claim is against an insurance company for injuries
involved in a car accident, you can bring your doctor to talk about the
extent of your injuries and how they affect your ability to work. (But it is
much more common just to bring a written report from the doctor. This
saves a lot of money because you don’t have to pay the doctor for time
spent attending the mediation, nor the mediator for the time it takes to
sit and listen to the doctor.) If you do plan to bring an expert witness,
find out whether your mediation rules require you to notify the other
party; the purpose of this notification requirement is to give the other
party a chance to find an expert on the same topic.
5 / 40 MEDIATE, DON’T LITIGATE
5. Lawyers
Nearly all mediation rules give you the right to bring a lawyer to the
mediation. Lawyers might already be involved in your dispute—for
example, if the dispute has progressed to a lawsuit and you are represented
by counsel, your lawyer may attend the mediation. Or, you may want to
consult with a lawyer during the process, to make sure that any settlement
you reach is fair. In general, however, you don’t need a lawyer to mediate.
In fact, bringing a lawyer can sometimes undermine the process.
For mediation to be most effective, disputants need to deal with
each other directly, air their differences, learn to perceive the dispute
from each other’s point of view, and work together to find a resolution.
Against this background, bringing a lawyer, who is trained to function in
the more adversarial atmosphere of the courtroom, can sometimes be
self-defeating—especially in interpersonal disputes involving family,
friends, neighbors, or business colleagues. This is particularly likely if a
disputant lets the lawyer do most of the talking (bringing and relying on
the help of a lawyer is likely to be less of a problem in disputes between
more distant parties over money or property).
However, there are times when it makes sense to bring—or at least
consult—a lawyer.
Ask your lawyer to stay in the background. Your lawyer doesn’t have to
play the lead role at the mediation. For example, you might ask
your lawyer to simply sit quietly and listen. Occasionally, you can have a
private conference to be sure that you haven’t left out anything impor-
tant and that you are considering all of the legal implications of any
proposed settlement terms.
insights into the more technical legal aspects of your dispute before,
during, or even after your mediation sessions.
• Before the mediation: Consult with your lawyer about the issues in
dispute. In order to use the law as a benchmark in determining your
goals, ask what might happen if your case went to trial or arbitra-
tion. For example, in a personal injury case, a lawyer can give you a
pretty accurate high and low estimate of how much a judge or jury
might award for your type of injuries. Or in a case where you believe
someone plagiarized an article you wrote, a lawyer could advise you
about how various settlement options might affect your ability to
stop others from plagiarizing the same work.
• During the mediation: You can ask a lawyer to remain on call during the
session, in case you need immediate help on a particular point. For
example, in a business mediation, if you are moving toward a
settlement in which you will buy your partner out, you can take a
break to call your lawyer and ask about the personal tax conse-
quences of various ways of structuring the deal.
T he bailiff bangs three times and says, “All Rise! This Court is now
in session, The Honorable Thomas A. Watson presiding! You may now
be seated.”
That is how a typical courtroom hearing begins. Mediation begins
differently.
“Hello. Are you Elizabeth Ferraro? Are you Richard Rafferty? I’m
Tom Watson, the mediator. Will you both follow me into the conference
room, please?”
The mediator’s low-key opening sets a tone of sensible informality
that will continue throughout the proceedings. But it is also a little
deceiving, because it is such a casual overture to the compelling drama
about to unfold. Mediation can be so dramatic because you and the
other side—your former business partner, your annoying neighbor, the
boss who fired you—play the starring roles. In just a few moments, you
will sit face to face, with the chance to say what is on your mind,
wrangle over the issues, and if all goes well, arrive at a solution.
Although mediation is conducted informally, it is a process that
usually moves from one defined stage to the next, giving the disputants
time to speak and listen to each other, sometimes meet privately with
the mediator, and work together to find a solution to their dispute.
EXAMPLE: You are mediating a dispute over noise with the upstairs neighbor in
your co-op apartment building. The mediator begins by explaining the purposes
of mediation and the procedures to be followed. Then, you and your neighbor
each have an opportunity to make an opening statement, explaining how you
see the dispute. A short joint discussion follows, during which the mediator
6/4 MEDIATE, DON’T LITIGATE
reviews the issues raised by both of you and helps you sort out the key con-
cerns. Next, the mediator probably asks to meet with each of you privately to
discuss your positions on the issues and your ideas for solving the problem.
After shuttling back and forth to conduct several rounds of these private
meetings (called “caucuses”), the mediator calls you back together to try to
work out the details of a settlement in another joint discussion. Finally, if both
of you agree to the same settlement terms, the mediator outlines the agreement,
reads it to you for your approval, and declares the mediation closed.
3. Joint Discussion
4. Caucus
6. Closure.
The sections that follow will describe each of these stages in detail,
using these three fictional cases as illustrations:
• CASE 1—The Noisy Neighbor. This is a neighbor dispute involving Ms.
Ferraro, who is complaining of noise from late evening pool parties
hosted by her backyard neighbor, Mr. Rafferty.
• CASE 2—The Missing Security Deposit. Ms. Sherman leased space in her
industrial park to United Tea Bags, a company that sells tea whole-
sale to local restaurants. The company has moved out, but Ms.
Sherman has refused to return its security deposit because of dam-
age she claims the company’s employees did to the offices before
they left.
• CASE 3—Business Owners Fall Out. Mike Woo and Ted McDonald are co-
owners of Big Slice Pizza, Inc., a restaurant. They have had a falling
out over various issues of running the business, including pricing
and employee relations. Each owns half the company. They have
come to mediation either to work out their differences or to decide
to end their partnership.
WHERE TO SIT
Typically, the mediator will come to greet you and the other parties in a
waiting area. He will introduce himself to everyone and then escort all
of you together to the conference room or other room where the
mediation will be held. He does it this way to protect his image of
neutrality. If the mediator brought one side into the room before the
others, the party entering last might wonder if the other party had said
anything to influence or prejudice the mediator.
Once in the conference room, the mediator will invite you to take a
seat at the table. There is no strategic advantage in jockeying for table
position; the mediator usually knows where he wants you to sit and,
much like a host at a dinner party, will direct you to a seat. A typical
seating plan places one party on one side of a rectangular table, the other
party directly across, and the mediator at the head. A lawyer or witness
who comes with you will usually be seated next to you, or perhaps just
behind you if there isn’t room for everyone to fit at the table. If for some
reason you are uncomfortable with the seating arrangement, speak up
and the mediator should be willing to accommodate you.
Only by gaining and keeping control can the mediator keep the
mediation on track and moving forward. Everything your mediator says
and does is designed with this goal in mind, including meeting you in
the waiting room, presenting a neat appearance, and speaking politely
and respectfully. The mediator will try to continue in this fashion during
the opening statement, by speaking confidently, answering your ques-
tions fully, and otherwise demonstrating intelligence, sensitivity, and
lack of bias—in short, by proving to be someone in whom you can and
should place your trust.
matter how much you disagree with what you hear. You will have a
chance to speak as well. If you need to make notes to remind yourself of
comments you want to make later, there are pads and pencils on the
table for you to use.
“While each of you is speaking, you may notice me taking notes. If I
write something, it doesn’t mean I agree or disagree with what has been
said. I am taking notes just to help me keep track of the facts.”
Use of Evidence: “While you are speaking, you can show us any evi-
dence you have brought with you, such as bills, letters, photographs, or
whatever. The purpose of evidence is to help us understand your side of
this dispute. The technical rules of evidence followed in court are not
followed here, so I am willing to look at anything you want to show me.
The other person will be able to look at it, too.”
Discussion Stage: “After the opening statements, we will begin to
discuss the issues in dispute, and hear from any witnesses you have
brought today. During this discussion phase, you can each say whatever
you like, but I will stop you if you use profanities or other inappropriate
language, and ask you to find a different way to make your point.”
Caucusing: “At some point, I may want to talk to each of you sepa-
rately in what is called a caucus. If that happens, I will ask one of you to
leave the room while I speak with the other. I will keep everything you
tell me in a caucus confidential and I won’t reveal it to the other side,
unless you give me specific permission to do so. If I spend longer in
caucus with one of you than the other, it doesn’t mean I am partial to
one side, it just means that it may be taking me a little longer to under-
stand all the facts and the options available.”
Confidentiality: “You have both signed a pledge to keep everything said
and revealed in this session confidential.” (This pledge usually appears
in the mediation agreement both parties signed before the mediation.
See Chapter 5, Section A.) “I have taken a similar pledge to keep secret
everything you say or show me. In fact, when this mediation is over, I
6 / 10 MEDIATE, DON’T LITIGATE
Opening Statement for Lease Dispute: In Case 2, Mr. Nehru begins by saying: “I’m
here because my company, United Tea Bags, Inc., rented space from Ms.
Sherman. After we vacated the building last month, she didn’t return our
security deposit, which, according to our written agreement, was refundable.
Our company represents several nationally known tea manufacturers and sells
tea bags by the case to restaurants, hotels, and some convenience stores. A
couple of years ago when we were looking for local office space, we met Jane
Sherman, who had space to rent in the Four Corners Office Park.”
Opening Statement for Business Ownership Dispute: In Case 3, Mike Woo starts this
way: “We’re here today to resolve—one way or the other—a problem between
Ted McDonald and me that has been growing for nearly three years. We’ve
either got to figure out how to run our restaurant together, or one of us has to
The Six Stages of Mediation 6 / 13
buy the other out. I started Big Slice Pizza by myself in January of 2002. We
were doing okay, and then my brother-in-law introduced me to Ted
McDonald, who was looking for a new business to get involved in. We didn’t
know each other at all, but he seemed capable and was really eager, and
frankly, I was a little overwhelmed to be starting up this business on my own.
So I sold him 25% and later another 25% of the stock, so that we owned the
business 50-50. That’s when our troubles began.”
Neighbor Dispute: Ms. Ferraro: “The first time I was woken up by noise from a
pool party was one night around the middle of July 2003 at about 2 a.m.
I remember the incident because the next morning I had to be up at 6 a.m. for
an early flight to Chicago for business.”
Lease Dispute: Mr. Nehru: “We signed a lease for 1,800 square feet of office
space in Ms. Sherman’s building to begin on January 1, 2001 and run for two
years, until December 31, 2003. We left the premises on schedule, on Decem-
ber 31st.”
Business Ownership Dispute: Mike: “I signed over 50% of the stock to Ted around
October 12, 2002—I remember the date because it was right around Colum-
bus Day and we had a big special on deep-dish Sicilian-style pizza. The next
night was when we had our first big argument in front of the employees.”
6 / 14 MEDIATE, DON’T LITIGATE
Think twice before you present evidence likely to anger or embarrass the other
party. Your goal is to solve the problem, not to win a court case.
That’s why it’s counterproductive to present evidence that is likely to
upset the other party—you will only scuttle your efforts to reach a
settlement. For example, in the neighbor dispute, Ms. Ferraro, the
neighbor complaining of loud pool parties, might have found bits of
roll-your-own cigarette paper that wafted onto her lawn. She may
believe this is evidence that her neighbor and his guests have been using
marijuana, but it would be a mistake to introduce this at the mediation.
It is not relevant to the noise dispute, and accusing her neighbor of drug
use will only increase the level of animosity, possibly ruining any chance
of working out a settlement.
Lease Dispute: Mr. Nehru: “Here’s a copy of my company’s lease with Ms.
Sherman, and here’s a copy of my letter to her written two months after we
vacated the building, requesting the prompt return of the security deposit.”
Business Ownership Dispute: Mike: “We’ve been unable to keep any chief cook
employed in our restaurant for more than six months at a time because they
always end up having problems with Ted. Here are resignation letters from
two of them, in which they clearly state that they are leaving because they find
it too difficult to work with him.”
The mediator will look at any documents and other evidence you
present, then pass them to the other side to view. Because the floor is
still yours, the other party will usually not be allowed to comment or ask
questions at this time. To avoid interrupting your presentation, the
mediator will also probably hold major questions or comments about
your evidence until later.
Sometimes, the mediator has the legal power to influence the decision. In
some states, when judges refer particular kinds of cases to media-
tion, the mediator has some legal authority to influence the judge’s
ultimate decision if mediation is unsuccessful. In California, for example,
where divorcing couples are required to mediate child custody and
support issues, the mediator may recommend how the judge should
decide these issues if the parties can’t agree. Or, if you are participating in
“med-arb” (a hybrid process that combines mediation and arbitration; see
Chapter 1, Section D, for more information), the mediator will decide the
issues as an arbitrator if the parties cannot reach an agreement. If your
mediator has the legal power to influence the outcome of your dispute,
you will obviously want to work very hard to impress the mediator with
your sincerity, your integrity, and the strength of your case.
Don’t dismiss your mediator as a phony. Just as some people are put off
by therapists, some mediation participants have a negative reac-
tion to a mediator’s effort to convey interest and concern. Here is our
advice: Give the process a chance. Although occasionally a mediator will
come across as being just a little too sincere, the great majority have an
honest desire to help people solve problems. Even if your mediator’s
style doesn’t quite work for you, it might work for the other party—and
therefore, create greater possibilities for settlement.
a. Do Not Interrupt
Keeping quiet and calm may not be easy, especially if the other party is
prone to exaggeration or just plain lying. Perhaps it will be easier to
refrain from interrupting if you remember three things. First, you’re not
in court, where the judge has the power to make a decision based on
misinformation. Second, the mediator will have lots of experience
The Six Stages of Mediation 6 / 19
dealing with people who exaggerate or lie. And third, you will have a
chance to say whatever you want during your uninterrupted time. Make
a note of the statement that upsets you and raise it later if it still seems
important.
Neighbor Dispute: Mr. Rafferty: “You know, I would like to feel I can enjoy my
own yard without having neighbors rushing to call the cops the second things
get a little loud. And if she’s so concerned about being a good neighbor, why
doesn’t she keep her dog on a leash like she’s supposed to, and out of everyone’s
trash?” [Possible bargaining chips for Ms. Ferraro include a promise not to call
police without advance warning, and a promise to leash her dog.]
Business Ownership Dispute: Ted: “I thought when we got into this business I
could help out my sister’s husband by buying our imported cheese from him.
But because of all the problems between Mike and me our business has been
extremely uneven—do you know how embarrassing it is to continually place
and then cancel cheese orders from my own brother-in-law? Instead of helping
him out, I’ve actually ended up costing him money!” [A possible bargaining
chip for Mike in trying to get Ted to sell him back his stock in the restaurant
would be an agreement to have the restaurant continue to buy imported cheese
from Ted’s brother-in-law.]
The Six Stages of Mediation 6 / 21
Neighbor Dispute: Ms. Ferraro: “Mr. Rafferty, I don’t know where you got the
idea that I have a reputation in the neighborhood for being a complainer, but I
can tell you that’s just not true. I’m a quiet person and mind my own business.
Since I moved into my house five years ago, you are the first person who has
given me any reason to complain about anything.”
There is a tendency for things to get out of hand during these early
stages of discussion, so the mediator will be working hard to keep the
discussion under control. The mediator may have to remind one or both
of you not to use uncivil language or make personal attacks. Beginning
at this stage, your mediator will likely use one or more of the following
techniques to control and advance the mediation:
• Investigation: In considering the evidence and statements of each
party, the mediator might find information that demonstrates
potential holes in a party’s argument. For example, in a dispute over
property rights, by examining a map brought by one of the dispu-
tants, the mediator may discover an error in measurement that casts
new light on the position of the complaining party.
6 / 22 MEDIATE, DON’T LITIGATE
• Distraction: The mediator may try to relieve tension during the session
by use of humor, anecdotes, or just plain diversion. “You know,” the
mediator might say, “this reminds me of a story....”
Lease Dispute: Mediator: “Well, from everything you two have told me, it
sounds like we need to focus on this question of whether United Tea should be
repaid the $7,000 given to Ms. Sherman’s real estate firm as a security
deposit. Ms. Sherman says employees of United Tea damaged the reception
area of the office, and therefore some or all of the deposit should be used for
cleaning and repairs. Before we talk about that, however, let’s see if you both
can agree about the condition in which United Tea left the other rooms in the
space it rented.”
During this give and take, listen carefully to the other party. Just as
you did during the opening statement, try to discern from the discussion
what her real needs are and what she is seeking from mediation.
3. Calling Witnesses
In most mediations, there is no need for witnesses. The facts may be in
dispute, but proving who’s right and who’s wrong is not what mediation
is about. However, there are some situations in which a witness’s atten-
dance will be helpful, such as when the other party denies crucial facts
and the mediation isn’t likely to progress until they are established. For
example, you may need to establish the cause of an electrical fire in your
home (witness: consulting electrician) or the seriousness of injuries you
received in an automobile accident (witness: physician). As noted in
Chapter 5, Section C, you do not always need to bring a “live” witness;
sometimes, a letter, memo, or report from the person will do the job. If
you have any of these documents, you should present them as you tell
your story in your opening statement.
6 / 26 MEDIATE, DON’T LITIGATE
Many mediators ask the witnesses to wait outside the room during
opening statements. During the discussion stage, the mediator will call
them back in and, in the presence of both parties, invite them to tell
what they know about the dispute. As the disputants were allowed to
make their opening statements without interruption, so the witnesses
will be given a chance to say what they came to say:
Neighbor Dispute: Mr. Rafferty’s Witness: “I was at the party in July where Mr.
Rafferty’s neighbor says she called to complain about the noise and that people
were rude to her. But you should have heard how nasty she was when she
called and some of the language she used. I’m not going to repeat it here. If
she’d asked us nicely to turn down the music we would have. But when
someone starts off by calling you a bleep, well, forget it. The point is that most
of the folks at the party—we all work together—are not the kind of people
who would purposely disturb someone. She’s got the wrong idea about us.”
If you have any questions of the witnesses, you can usually ask them
directly. The mediator may ask a few questions, too. After that, the
mediator will probably tell the witnesses that they can go home. Unlike
witnesses in court, who are sometimes asked to wait around just in case
someone wants to recall them to the stand, witnesses in mediation are
allowed to leave. The rest of the session focuses exclusively on the
disputants and possible solutions to their problem, not on rehashing the
facts underlying the dispute.
Neighbor Dispute: Mediator to Ms. Ferraro: “Well, I can see you’ve been under
tremendous stress because of this situation. I really hope we can find a positive
way to solve this problem so that you can get some sleep.”
6 / 28 MEDIATE, DON’T LITIGATE
2. Confidentiality
Generally, most mediators will not repeat anything you say in caucus to
the other side unless you expressly okay it. For example, if the mediator
is using the caucus to try to help you craft a compromise offer, the
background chat won’t be communicated to the other side, but—with
your permission—the offer will be. If the mediator has not made this
policy clear in the opening statement or when the first caucus begins,
ask what the policy will be so you are clear about it before the caucus
begins. (Some mediators take the opposite approach—they assume that
they can share anything you say with the other side, unless you ex-
pressly request confidentiality—so be sure to check on your mediator’s
policy.)
Typically, the mediator will caucus with each side several times
during the course of mediation. In a relatively simple two-party media-
tion—for example, involving an auto accident or dispute between two
business people—it would be typical for a mediator to caucus two or
three times with each side during a half-day mediation. A mediation that
lasts a full day may involve three to five caucuses with each side. But
there is no rule on this. The frequency of caucusing depends entirely on
the mediator’s style and assessment of whether the caucusing process is
moving the parties closer to settlement.
The mediator will also try to translate what the other side is trying to
tell you into language you can more easily understand. For example, if the
other party spoke mostly in jargon or euphemisms, the mediator during
caucus may tell you in plain words what the person seems to be saying.
Business Ownership Dispute: Mediator, in caucus, to Ted: “Ted, I think what I’ve
heard Mike say this morning is that he doesn’t think it’s possible for him to
remain in business with you any longer, but he is willing to sell his share in the
business, or buy yours, for a reasonable price.”
Here are some of the strategies mediators commonly use to move the
parties closer to a settlement.
• “If this case went to trial, is it realistic to think a jury would find the
other side 100% at fault?”
• (To Ms. Ferraro in the neighbor dispute): “I know Mr. Rafferty was not
living behind you when you bought your house, but did you know the
house behind you had an outdoor pool fairly near your house?”
• (To Mr. Nehru in the lease dispute): “According to the strict word-
ing of the lease you signed for this office space, doesn’t the landlord
get to decide how much of the security deposit should be returned?”
6 / 30 MEDIATE, DON’T LITIGATE
• (To Mike in the business ownership dispute): “I know you feel Ted’s
involvement has prevented the pizza restaurant from being success-
ful. Have you ever run a business successfully on your own?”
Don’t get too upset if the mediator challenges your version of events
or your position. The other party is surely getting the same treatment in
the conference room next door. And the answers you and the other
party give to the mediator’s questions may help you to evaluate your
case more realistically—and move toward settlement.
• “How much time and money are you likely to spend in this dispute
if you can’t settle it in mediation?”
• (To Mr. Nehru in the lease dispute): “What happens when custom-
ers, job applicants, and others go to your former office address and
can’t find you?”
• (To Ms. Ferraro in the neighbor dispute): “If Mr. Rafferty sold his
house tomorrow, do you think the new owners might use their pool
on warm evenings?”
Again, one possible response to your mediator’s efforts to give a
reality check is to get angry. After all, the mediator is asking you ques-
tions you don’t want to answer or giving you feedback you don’t want to
hear. A more positive response is to accept and take advantage of your
mediator’s role. After all, the mediator has loads more experience in
The Six Stages of Mediation 6 / 31
settling disputes than you do, and this feedback, whether in the form of
questions or advice, is likely to be sensible.
One good approach is to come right out and ask your mediator for a
reality check: “Am I on solid ground here? Is there some aspect of this
problem I’m not seeing clearly?”
• “If you were in the other person’s shoes, what sort of solution would
you propose?”
• “What are some ways of settling this dispute that would be fair to
you and to the other side?”
• “Can you think of a solution to which you and the other side might
agree?”
• [To Ted in the business ownership dispute] “As an exercise, let’s see
how many different ways of dividing or breaking up this business
we can think of. Can you help me come up with a list of ten differ-
ent ways?”
Good mediators are skilled at creating new options. Here are some
techniques your mediator may use to bring you closer to a resolution.
• Compromise. It’s a simple and obvious approach, but a mediator who
has won the trust of both parties may be able to settle a dispute
merely by encouraging each to move a little toward the middle.
6 / 32 MEDIATE, DON’T LITIGATE
Lease Dispute: Mediator: “Mr. Nehru, what if Ms. Sherman were to give you a
check today for half of the security deposit? Would you be willing to walk
away from this whole dispute and call it even?”
Neighbor Dispute: Mediator to Mr. Rafferty: “Ms. Ferraro might be more willing
to agree to a reasonable compromise if you would offer her a sincere apology
for the some of the things your friends said to her when she called your house.”
police in the event she is again disturbed by noise, but instead will
first call Mr. Rafferty directly to inform him of the problem. Mr.
Rafferty will come to the phone himself if Ms. Ferraro calls.”
• Interim Agreement. The parties agree to try something for a few weeks
or months and to meet again at a future date to evaluate the results.
For example, a divorcing couple who cannot agree on a visitation
schedule for the noncustodial parent may agree to try a plan for six
months, and then meet again with the mediator to evaluate how it is
working for each of them and their children.
Neighbor Dispute: Mediator to Mr. Rafferty: “I don’t think Ms. Ferraro is ready
yet to give up her right to call the police. She’s been too disturbed too often.
What we need is to rebuild some trust between you. If we can agree that you
will try to control the noise from your pool for, say, three weeks, and then
we’ll meet again to see how it went, that experience may allow us to move
ahead to a permanent agreement. Would you be willing to try it?”
• Partial Settlement. The parties settle what they can and leave the rest
for later. Although similar to the interim agreement strategy, here
the disputants make a partial settlement and decide to put the rest of
their dispute “on hold” for a while. They agree that during the
holding period they will not file lawsuits and will treat each other
civilly. Later, they will meet with the mediator again to see if cir-
cumstances or their positions have changed in a way that might
allow them to resolve the rest of the dispute.
Neighbor Dispute: Mediator to Ms. Ferraro and Mr. Rafferty: “I’m glad we’ve
been able to work out this matter of noise from Mr. Rafferty’s pool. Unfortu-
nately, the matter involving Ms. Ferraro’s dog raises some issues that are
going to take more time to resolve, and we have agreed to meet again in two
weeks to discuss them further. In the meantime, Mr. Rafferty, you have agreed
not to call Animal Control if you find Ms. Ferraro’s dog loose in your yard,
and Ms. Ferraro, you have agreed to try to restrain your dog from wandering
in the neighborhood.”
The Six Stages of Mediation 6 / 35
Lease Dispute: Mr. Nehru to Mediator: “Look, I appreciate all your suggestions
and will concede my people may have spilled some tea on the carpet. Ms.
Sherman can keep $1,000 for damages but I want $6,000 back and I’m not
leaving here with less. And I hope you will clearly tell her that!”
Would you really refuse to accept anything less than $6,000? Maybe
yes, maybe no. For the moment, you can keep that to yourself. But for
now, $6,000 is the message you want to send to the other side, and if
you’re wise, you’ll let the mediator carry it for you. The mediator will see
that, in order to get a settlement, the other side will have to agree to pay
you $6,000—or something very close to it. And the mediator will have
to persuade the other side to do this.
Lease Dispute: Mediator to Ms. Sherman: “Well, I’ve talked with Mr. Nehru and
I’m glad to say we’ve got some movement on the damage issue. Although he’s
not conceding liability, he is willing to pay up to $1,000 for damages; is that
something you can live with?”
You can also use your mediator to float trial settlement balloons by
posing your own “What if…” questions. Although you might not want
to propose any settlement ideas directly to the other side (for fear of
seeming too eager to settle), you can try the idea out on the mediator
6 / 36 MEDIATE, DON’T LITIGATE
during caucus. If the mediator thinks it holds promise, the mediator can
then present it to the other side as his or her own idea, not as your
settlement proposal.
Lease Dispute: Mr. Nehru to Mediator: “When you meet with Ms. Sherman
again, ask her what she’d think of a package deal like this: She keeps the full
damage deposit of $3,500, returns to me the $3,500 security, my people pick
up the samples she’s got in storage, and she agrees to post our company’s new
address in her office lobby for the next six months. Don’t say directly that I’m
proposing this, but just kind of float the idea and see what her reaction is.”
Mediators often notice at this stage that the parties start using each
other’s first names.
If you and the other side are able to conduct your own negotiations,
the mediator may decide to be quiet at this point, adding a suggestion or
word of caution as necessary. Or, the mediator may be an active orches-
trator of your negotiations, proposing new ideas for settlement and using
information learned in private caucus to let you know when changes in
bargaining positions might be helpful. If necessary, the mediator may
call another round of private caucuses, or perhaps caucus with just one
of you again.
During this stage, the mediator’s goals will be:
• to keep the negotiations focused on the real issues in dispute.
Lease Dispute: Mediator to Mr. Nehru and Ms. Sherman: “The question you’re
discussing—how efficient the Postal Service is at forwarding business mail—is
interesting, but not within our ability to influence. Let’s stay focused on the
things we can do something about.”
• to help the parties confront any new issues that must be addressed
before a settlement can be reached.
Neighbor Dispute: Mediator to Mr. Rafferty: “This fence we’ve been talking
about that separates your backyard from Ms. Ferraro’s yard—did you just
mention something about it protruding onto your property? Is that an issue we
need to look at today?”
will lose face if you announce a major change in front of the other side.
One way to solve this problem is to use the mediator to help you com-
municate the change. For example, in our neighbor dispute case, Ms.
Ferraro had been insisting all along that her neighbor, Mr. Rafferty,
adhere to strict “quiet hours” as set down by the Town’s noise code.
Later in the mediation, she realizes that it may advantageous to be a little
more flexible in order to strike a deal with Mr. Rafferty. Because she
usually stays at her boyfriend’s on weekends, she doesn’t really care
about noise after the weekend noise curfew, but because she often has to
get up early for work, she would love to see things quiet down a bit
earlier on weeknights.
Neighbor Dispute: Ms. Ferraro: “Well, the mediator has convinced me that the
‘quiet hours’ in the town’s noise code that was written 80 years ago are a little
unrealistic on Friday and Saturday evenings, so I’m not going to insist that you
follow that law to the letter on weekends, but….”
offer for his stock from his partner, Mike, may want to step out of the
mediation to call his accountant and find out what the tax consequences
of the proposed plan might be.
Lease Dispute: Mediator: “I’m pleased to tell you both that in caucus each of you
has told me you will agree to the same settlement terms. These include: 1) Ms.
Sherman will return to United Tea $4,000, keeping $3,000 to cover damage
to the office space, 2) United Tea employees may have access to the building
next Thursday and Friday to remove product samples left in storage, 3) Ms.
Sherman will post, in the building’s lobby, a prominent notice showing United
Tea’s new address and phone, for a period of six months, and 4) none of the
parties nor their employees will discuss with anyone outside their respective
companies the nature of this dispute or the terms of its settlement.”
Never agree to things that you can’t—or aren’t willing to—do. If the
proposed terms don’t look right to you, now is the time to say so.
Don’t wait until the agreement is in writing and everyone is standing
around waiting for you to sign your name. At that point, the compulsion
to sign may be too great, and you might end up signing an agreement
you don’t believe in.
If you need a face-saving excuse to change your mind about some
of the settlement terms, you can:
• blame it on the mediator (“I didn’t understand that this is what the
mediator was proposing”)
1. Be an Active Participant
Whether your case is large or small, take an active role in helping to
write your mediation agreement. You might volunteer to write the first
draft of the agreement yourself—this will give you a great opportunity to
make sure the agreement reflects your views. Even if you don’t get to
write the agreement, make sure to offer your two cents on what the
agreement should include. It’s a lot easier to influence the final agree-
ment if you participate in the drafting than if you sit on the sidelines.
Instead of Use
abrogate cancel
apprise inform
cease stop
commitment promise
demonstrate show
desire wish
employment work
endeavor try
expiration ending of
heretofore earlier
locate find
prior to before
reside live
stipulate agree
terminate end
utilize use
7/6 MEDIATE, DON’T LITIGATE
RIGHT WAY: The Brannigan’s Craft Centers store at 1140 Ridgeway Avenue
will allow leaflets to be distributed…
Another advantage to using full names rather than terms like “the
parties” or even lots of pronouns like “him,” “their,” or “its,” is that it
makes each part of the agreement understandable on its own, if you ever
need to discuss a provision separately.
WRONG WAY: The piano store will let him exchange his piano…
RIGHT WAY: The Hilltop Mall branch of Locke’s Pianos and Organs, Inc., will
allow Richard Goldberg to exchange…
Write an Agreement That Works 7/7
4. Specify Dates
Be sure your agreement specifies precise dates when things should
happen.
WRONG WAY: The respondent, Mark Rothman, agrees to remove the rusted
Chevy from his front lawn as soon as possible.
RIGHT WAY: Mark Rothman will remove the rusted Chevy from his front lawn
by July 1, 2004.
WRONG WAY: The bonus to Susan Marshilock will be paid at the end of
Southwest Saving’s next fiscal year.
RIGHT WAY: The bonus to Susan Marshilock will be paid on or before October
30, 2004.
EXAMPLE: [Who] Locke’s Pianos and Organs, Inc., will allow [who] Richard
Goldberg to [what] exchange his Yamaha U-131 model console piano for any
piano currently in stock of equal or greater value. The value of the Yamaha
U-131 piano is $6,300. The exchange can be made [when] during regular
business hours until August 4, 2004 [where] at Locke’s main showroom, 1330
Washington Street, Heneson, Pennsylvania. [How] Locke’s store manager,
Suzannah Locke, will make herself available to help in the exchange.
7/8 MEDIATE, DON’T LITIGATE
WRONG WAY: The Turims agree to keep their dog confined to their house, and
the Hershmans agree to instruct their children not to throw things into the
dog’s enclosed run. The dog will be enrolled in an obedience school and they
will keep it confined when they’re not home, and their children will not tease
the dog.
RIGHT WAY:
• Larry and Amy Turim agree to begin immediately keeping their dog,
Tammy, confined to the house after 6 p.m. if they are not at home.
• Larry and Amy Turim agree to enroll their dog, Tammy, in the Canine
Obedience School of the Livingston County Humane Society for the next
available program beginning after September 1, 2004 and to take the dog
to each class of the program.
• Jacob and Marie Hershman agree to immediately instruct their children,
Sarah and Valerie, not to tease the Turim’s dog, Tammy, and particularly
not to throw any items into the dog’s enclosed run.
Your agreement should state exactly who is to pay how much to whom,
when, and in what form (check, money order, cash). If more than one
payment is involved, the agreement should also say what will happen if
a payment is missed. Will there be a late fee and interest on that install-
ment? Will the whole debt become due, allowing the creditor to sue and
get a judgment immediately?
Don’t take a rubber check. If you are dealing with a person or small
business that may have trouble meeting its obligations, insist on
payment by money order, certified bank check, or, if you are a business,
credit card. This is standard business practice and shouldn’t be a prob-
lem. On the other hand, if you are confident that the other party will
pay, there’s no need to insist on a money order or certified check (and it
might even insult the other party).
WRONG WAY: Ralph Edwards agrees to pay Frank Richardson the sum of $845.
RIGHT WAY: Ralph Edwards will pay to Frank Richardson the sum of $845 by
money order or certified bank check sent by U.S. mail to Frank Richardson at
35 Eulalia Way, Coniston, South Dakota 57453, by February 3, 2005.
WRONG WAY: Garden Way Landscape Company agrees to pay $650 to any
other landscape company Gerald Secor selects to do the work on his lawn.
If you can’t pay each other, pay the mediation service. If there is so much
animosity between you and the other party that you suspect you
might never get paid, the agreement can require the other party to pay
the mediation service on your behalf. The mediation service will receive
the funds and write a check to you for the same amount. (Of course, you
should check with the mediation service to make sure it will agree to act
as intermediary before you put this in your agreement.)
EXAMPLE: Garden Way Landscape Co. agrees to pay Gerald Secor the sum of
$650. This provision shall be satisfied by issuance of a corporate check, made
payable to The Center for Dispute Settlement, Inc., and sent by U.S. mail to
the Center, 87 North Clinton Ave., Rochester, NY 14604, by August 15, 2004.
ment should not state that the landlord was “lazy,” “negligent,” or even
“wrong.” Instead, the agreement should just spell out what the landlord
agrees to do in the future.
WRONG WAY: “Whereas Francis Riley, manager of the Seneca Tower Apart-
ments, failed to keep the piping to the apartment of Mr. and Mrs. Lester
Aggazis adequately insulated against freezing temperatures…”
RIGHT WAY: “Mr. Francis Riley, manager of the Seneca Tower Apartments,
agrees to repair all piping necessary to the proper functioning of the bathtub,
shower, sink, and toilet in the master bathroom of Apartment 7-C, occupied by
Mr. and Mrs. Lester Aggazis. Mr. Riley agrees to complete these repairs by 5
p.m. on June 3, 2004. If plumbing problems recur in the future, Mr. Riley
agrees to arrange for repair within 12 hours of being notified of the problem.”
As you may have guessed, we think that the best way to handle any
problems and avoid future lawsuits is to make the final provision of your
agreement a mediation clause, in which everyone agrees to return to
mediation if problems or new issues arise. It should clearly detail who
will provide the mediation, the timing of the process, and how fees will
be shared. Usually, it’s most efficient to simply name the same mediator
or mediation service that handled the original dispute; it will be easier
for them to reopen the file than it would be for another mediator to start
from scratch.
SAMPLE MEDIATION CLAUSE: If any dispute arises out of, or relates to, this
agreement or its performance, that Charles Washington and Everett Boyd
cannot resolve through negotiation, Mr. Washington and Mr. Boyd agree to
try to settle the dispute by mediation through the Minneapolis Mediation
Network, Inc., before resorting to arbitration, litigation, or any other legal
remedy. The costs of the mediation will be shared equally by Mr. Washington
and Mr. Boyd.
You may want to take the additional step of referring disputes that
can’t be settled through mediation to binding arbitration. This is done
through a clause requiring mediation and arbitration as a two-step
process. Agreeing to binding arbitration assures that the dispute will be
resolved reasonably quickly and privately, one way or the other. How-
ever, arbitration is usually a win-lose proposition and you can never be
absolutely sure if you will prevail.
[Step One: Mediation] If a dispute arises out of, or relates to, this agreement
or its performance, that Irina Sungren and Susan London cannot resolve
through negotiation, Ms. Sungren and Ms. London agree to try to settle it
by mediation at the Minneapolis Mediation Network, Inc., before resorting
to arbitration, litigation, or any other legal remedy.
Write an Agreement That Works 7 / 13
C. Sample Agreements
On the following pages you’ll find three agreements reached at actual
mediations, with the disputants’ names and other identifying informa-
tion deleted or changed. These documents were selected both to show
what an agreement might look like and to illustrate the broad range of
disputes that can be mediated successfully.
1. Landlord/Tenant Dispute
In this case, the landlord of a residential apartment building threatened
to sue a former tenant over property that was missing from the apart-
ment after the tenant moved out. The missing items included door-
knobs, curtains, and lamps. In mediation, the parties agreed on a list of
items that the tenant would either return or pay for by a set date. For his
part, the landlord agreed to return the tenant’s collection of tapes,
records, and CDs that the tenant had inadvertently left in the basement.
The agreement was drafted with reciprocal promises to give it the effect
of a legal contract. (For information on how to make a contract legally
enforceable, see Section D, below.)
7 / 14 MEDIATE, DON’T LITIGATE
Judith Stevens
Under the Rules and Procedures of The Center for Dispute Settlement, Inc.,
Judith Stevens and Seymour Wilson (for Wilson Property Management, Inc.) agree
that the following provisions fully resolve all the claims they submitted to media-
tion on July 3, 2004.
2. Ms. Stevens will pay a total of $174 to Wilson Property Management, Inc., for
the following items that were broken or are missing from the apartment:
Ms. Stevens will pay the $174 as follows: $40 per month beginning August, 2004
by money order mailed by the 10th of the month to: Mr. Wilson, 280 South Holly-
wood Drive, Apt. 1, Rochester, NY 14620. The fourth and final monthly payment
will be for the amount of $54.00.
3. Mr. Wilson will consider that all possible legal claims that he might have against
Ms. Stevens concerning her being a tenant at the Bedford Street Apartments have
been settled if she delivers to him as promised all the items in paragraph l and
also pays him the amounts in paragraph 2.
4. Upon satisfactory return of all items named above and payment of all amounts
due, Mr. Wilson will release the tape, record, and CD collection belonging to Ms.
Stevens, and arrange with her a date and time when she can collect these items
from the offices of Wilson Property Management, Inc.
If any dispute arises out of this agreement or its performance that Ms. Stevens or
Mr. Wilson cannot resolve themselves, they will try to settle the dispute by media-
tion through the Center for Dispute Settlement, Inc.
Judith Stevens
Judith Stevens
Seymour Wilson
Seymour Wilson
2. Neighborhood Dispute
The next dispute concerns two families, the Bertlesons and the McKays,
who are next-door neighbors. Each family has small children. At one
time the families were quite friendly, but during the course of one
summer tension developed between them. Helen and Arthur McKay
complained that Melinda Bertleson’s three children (she is a single
mother) often came into their yard uninvited to use their play equip-
ment, and left clothes, food wrappers, toys, and other items in the yard,
and also that the cars of Ms. Bertleson’s house guests often blocked their
driveway. For her part, Ms. Bertleson complained that the McKays had
made verbal threats against her and her visitors. When the McKays
finally called the police to have parked cars removed from the end of
their driveway, the responding officer encouraged both sides to consider
mediation at the local community mediation center. They agreed, and in
one afternoon worked out the following settlement. The agreement was
drafted by the McKays and Ms. Bertleson with the help of the mediator,
and they signed it before leaving the mediation center.
Write an Agreement That Works 7 / 17
Melinda Bertleson
Under the Rules and Procedures of The Center for Dispute Settlement, Inc.,
Melinda Bertleson and Helen and Arthur McKay agree that the following
provisions constitute full satisfaction of all claims submitted to Mediation
on July 3, 2004.
l. Helen and Arthur McKay agree that Ms. Bertleson’s children and their
friends can play on the swing set and other play equipment in the
McKays’ backyard at any time they wish as long as they are supervised
by an adult.
2. Melinda Bertleson agrees that her children and their friends will clean up
after themselves when they play in the McKays’ yard, and that she will be
responsible for seeing that they do.
3. Ms. Bertleson further agrees to tell her visitors not to park in or block the
McKays’ driveway, and that she will be responsible for seeing that they do
not block the driveway.
4. Mr. and Mrs. McKay agree not to make any verbal threats to Ms.
Bertleson or her visitors and to contact her directly in person or by phone
if they have any complaints about the conduct of guests at her home.
7 / 18 MEDIATE, DON’T LITIGATE
5. Ms. Bertleson and Mr. and Mrs. McKay also agree that if future disputes
arise between them they will try to resolve them by talking together, but if
they are unable to do so they will return to mediation at the Center for
Dispute Settlement, Inc.
Melinda Bertleson
Melinda Bertleson
Helen McKay
Helen McKay
Arthur McKay
Arthur McKay
Signature of Mediator
Mediator
3. Contract Dispute
This next dispute arose when a large manufacturing company, Unity
Corp., claimed that machine parts made for it by a smaller firm, JHL,
Inc., were defective and refused further delivery of parts halfway
through the contract. JHL, Inc., on the other hand, claimed the parts
conformed perfectly to the specifications in the purchase order, and
Write an Agreement That Works 7 / 19
threatened to sue Unity for $2 million ($1.8 million for the actual cost to
JHL of making the rejected parts, plus $200,000 in anticipated profits if
JHL had been allowed to complete the contract). But JHL was reluctant
to file the lawsuit because Unity was a major customer; winning the
lawsuit while losing Unity’s business would not be in JHL’s long-term
interest. The two companies agreed to mediate.
The mediation took about four days over a period of three weeks.
Although Unity still would not agree to accept the disputed parts, it did
agree to pay two-thirds of what it cost JHL to manufacture them (about
$1.2 million). Half of this amount would be in a lump sum payment and
the balance would be in the form of a purchase by Unity of some excess
equipment owned by JHL (but virtually worthless to JHL), which Unity
could use at one of its own manufacturing sites. In addition, the two
companies agreed to try to continue doing business together. Specifi-
cally, Unity agreed to give JHL a contract to do additional work; if the
new work was done successfully, the profit on it would about equal the
$200,000 that JHL had anticipated but not realized on the original job.
A brief outline of the agreement’s main points was drafted by the
principals of each company and the mediator before the last mediation
session concluded; the final version was signed a few weeks later, after
attorneys for both sides reviewed it and worked out the details.
A noteworthy aspect of this agreement is the total absence of fault-
finding in the contract that gave rise to their dispute. The agreement is
entirely forward-looking and is designed to preserve the both compa-
nies’ business relationship to their mutual advantage.
7 / 20 MEDIATE, DON’T LITIGATE
Unity Corp.
JHL, Inc.
1. The Unity Corp. agrees to award to JHL, Inc., within six months from the
signing of a final mediation agreement, a contract or contracts for the manufac-
ture of unspecified machine parts with a net profit margin to JHL upon success-
ful completion of not less than $200,000. Counsel for the parties will draft a
document further describing the parties’ rights and obligations concerning this
agreement for future manufacturing work.
2. Unity will pay to JHL, Inc., not later than 30 days from the signing of a final
mediation agreement, the amount of $600,000 to offset part of the costs incurred
by JHL, Inc., to manufacture machine parts under the disputed contract that was
the subject of this mediation. Full or partial payments of this amount made after
the 30-day period will include interest at the rate of 9% per year.
3. As further offset against JHL’s manufacturing costs, Unity will purchase from
JHL three Model X7 Impurities Testers for a total price of $600,000. Delivery
will be made FOB Unity’s East Ridge facility within 60 days after a final
mediation agreement is signed. Unity will pay JHL in full for this equipment
within 30 days of satisfactory delivery.
4. JHL agrees that when the steps outlined above in items 1-3 are completed, it will
consider all issues concerning the disputed contract to have been settled, and will
not in the future bring any legal actions against Unity concerning that contract.
5. The parties will prepare and exchange papers releasing each other from all
present legal claims when the steps outlined above in items 1-3 are completed.
Write an Agreement That Works 7 / 21
JHL, INC.
UNITY CORP.
Missy Longstockings
Mediator
• The parties have the legal ability to make a contract. This is an easy require-
ment to meet, as long as both parties are adults. All mentally compe-
tent adults have the power (“capacity,” in legalese) to make a con-
tract. Unless the other party is a minor or has a serious mental
impairment, you have no problem.
• The agreement doesn’t call for illegal actions. The terms of your contract must
not call for an illegal act, such as gambling, prostitution, or (more
commonly) a loan of money requiring a person to pay interest above
the legal rate—somewhere between 10% and 12% in many states.
• The terms of the agreement must be clear. If your agreement is so vague that
a reasonable person might have difficulty understanding it or carry-
ing it out, it does not qualify as a contract. To guard against this,
each provision should state clearly who does or pays what to whom,
when, and how. (See Section B4, above.) For example, if you want
the roof of your house ripped off and replaced with a new asphalt
roof that has a 20-year guarantee, your agreement should say exactly
that. By contrast, an agreement that says only that the other party
will “fix the roof” may be too vague to be enforced as a contract.
• Everyone must agree to the contract terms. There must be evidence that
both parties understand and agree to the terms of the agreement. The
signatures of both parties at the bottom of the agreement will nor-
mally satisfy this requirement. But in a few states, agreements must
explicitly state, in writing, that the parties intend them to be binding.
Although not technically required in most states, including this type
of statement is always a good practice. If your agreement is written or
typed onto a printed form provided by the mediator or mediation
service, look to see whether it contains a printed statement that the
agreement is intended to be legally binding. It probably will. But if it
does not, ask the mediator to insert a statement at the end of the
agreement. The following statement should do the job:
The parties understand and accept the terms stated above and intend this
agreement to be a legal contract, binding upon them and enforceable by a
court of law.
• ask the court to approve the agreement and issue a consent judg-
ment (sometimes called a consent decree) turning your mediated
settlement into an official court judgment. If the other side violates
the judgment, you can enforce it as a court order. By contrast, to
enforce a settlement agreement or contract that is not made into a
court order, you have to file a new lawsuit and get a judgment based
on breach of contract.
If you are concerned that the other side may not honor the agree-
ment, you will probably want to get a consent judgment. If you do not
anticipate a compliance problem, however, you can skip the consent
judgment—and avoid some added legal fees, court costs, and delay—
and rely on the settlement agreement as a legally binding contract.
(Some mediation agreements, such as those concerning child custody
and visitation, will not be enforceable under federal and state laws
unless they are approved by a judge and issued as a court order. For
more on this, see Chapter 10.)
Here are the legal remedies that are generally available for breach of
binding mediation agreements:
• Damages: The court can award you financial compensation for losses
you suffered as a result of the other party’s breach. This is the most
common way for a court to enforce an agreement.
• Specific performance: The court can order the other party to live up to
the agreement—for example, for a bank to give you a mortgage or
another person to sell you a piece of land. Courts generally will not
order specific performance of contracts involving personal labor,
such as requiring someone to paint your house or fix your car.
If your agreement contains an arbitration clause, you can get most of
the same remedies at arbitration with less expense and delay than would
be involved in a lawsuit. However, enforcing the arbitrator’s award
would still require a court proceeding.
The terms of this agreement will go into effect five business days after the
parties sign, unless the attorney (or CPA, appraiser, or other adviser) for
either party notifies the [mediation service] in writing of objections.
The “adviser’s review” clause can also provide a longer period for
review or state that the agreement will not become effective until co-
signed by the adviser. Bear in mind, though, that the longer you delay
making the agreement effective, the greater chance there is that the other
party will experience buyer’s remorse and decide to back out of the deal.
The mediator will then ask each of you to sign the agreement. The
mediator, too, will probably sign. Sometimes, signatures will be nota-
rized by a notary on staff. Having a signature notarized is a good idea if
you anticipate any need to prove, to a court or arbitrator, that the
signature on the agreement is genuine. Be sure to get a copy of the
agreement for yourself before you leave the mediation.
If you signed an outline or preliminary draft of the agreement in the
mediator’s presence and saved the details to be negotiated later, then the
signing of the final mediation agreement will most likely be done by
phone or fax.
SHAKE ON IT?
Exactly what do people who have been engaged in a bitter dispute do
when they sign their names to a paper ending the matter?
Some mediators have handled cases, such as those involving
estranged relatives or friends, where the parties reconciled through
mediation and concluded the session with an embrace. At nonprofit
community mediation centers, disputants are sometimes so grateful for
the center’s help that before they leave they offer a financial contribu-
tion, even though none is required.
Typically, though, the mediator will end the session simply by
shaking hands with each of the parties and congratulating them on the
successful result of their hard work. With a nod to one or both of the
parties, the mediator may encourage them to shake hands. Some
disputants feel enough relief and understanding of each other’s positions
to take the cue and end the session with a handshake. Others prefer to
simply take their copy of the agreement and go home. ■
CHAPTER 8
I n the film “Little Big Man,” the Native American grandfather decides
it is time to die. He climbs a nearby mountain, wraps himself in a
blanket, and lies down to wait for the Great Spirit to take him away.
When it begins to rain a little while later, he realizes he is still alive.
“Sometimes the magic works, and sometimes it doesn’t,” he says.
The same is true of mediation. The fact that it works far more often
than not is probably small solace to those who find themselves in the
unfortunate minority. But even if your mediation didn’t end in a settle-
ment, there is still hope that your dispute can be resolved without a
painful court fight. This chapter examines the range of options that may
be available to you.
Set a date right away. If you believe that another mediation session
might produce a settlement, you should schedule the next meet-
ing while everyone is still together at the first mediation. If you leave the
date to be worked out later, the other party may lose interest—or decide
to take some other action, such as going to court—and be unwilling to
reconvene.
Confidentiality Agreement
EXAMPLE: When Pam’s ex-boyfriend Bruce moved out of Pam’s home, he took
with him several items of her personal property, including a television set and
some valuable photography equipment. He refused to return them. Pam called
the police and asked that Bruce be arrested.
When Pam talked to the assistant district attorney who approves the issuance
of arrest warrants, he referred her to the community mediation center. Bruce
showed up for mediation, but the session did not result in an agreement to
return Pam’s property.
8/6 MEDIATE, DON’T LITIGATE
A judge, police officer, or prosecutor who sees that you have made a
good-faith attempt to work out a dispute through mediation may be
more inclined to grant you the legal action you originally requested. In a
sense, you may be rewarded for having tried mediation as a first option.
To find out the rules for small claims court in your area, simply contact the court.
Or, you can go to Nolo’s Legal Research Center at www.nolo.com/
lawcenter/statute/index.cfm, and click on “Small Claims Courts,” then
select your state—you’ll find a variety of self-help materials for small
claims litigants. For help in preparing your case for small claims court,
check out Everybody’s Guide to Small Claims Court (California and
National editions), by Ralph Warner (Nolo).
If You Don’t Reach an Agreement 8/7
Things you learned in mediation probably can’t be used in court. If you file a
lawsuit in a case that you’ve already tried to mediate, the confi-
dentiality rules of mediation prohibit you from using in court much of
the information disclosed by the other party during mediation. State law
determines how broad this prohibition will be, but it nearly always
prevents you from using the other party’s statements to show the validity
or value of a claim being advanced in the court. If you learn the same
information outside of the mediation, however, then you can use it in
court. If you are unsure whether a particular statement you heard in
mediation can be raised in court, consult with a lawyer or law coach
before going to your court hearing.
C. Arbitration
If you’ve tried mediation and “the magic didn’t work,” arbitration might
be a good option. At the very least, it will assure you and the other party
of a fast, private, and—at least as compared to court—reasonably-priced
way to resolve your dispute.
In binding arbitration, a neutral third party (called the arbitrator or
sometimes the arbiter) conducts a hearing between the disputants and
then makes a final and legally binding decision (called an award). The
arbitrator’s award is almost always enforceable in court just like a judge’s
order. Unlike mediation, arbitration requires you to give up control of
your dispute to the arbitrator, who takes the place of judge and jury. If
you go to binding arbitration, your hearing is, in effect, your “day in
court”; you will not get another. For more on the differences between
mediation and arbitration, see Chapter 1, Section D.
Except in highly unusual circumstances, an arbitrator’s decision will
not be overturned in court. Most state laws allow a court to overturn an
arbitrator’s decision only if there was fraud involved in the hearing, the
arbitrator was biased against one of the parties, or important procedures
8/8 MEDIATE, DON’T LITIGATE
binding decision. Med/arb assures that, one way or the other, the
dispute will be resolved: Either an agreement will be reached or a
decision will be handed down.
Most mediation services that offer med/arb use a system in which
the decision-making arbitrator is someone other than the person who
acted as mediator. In the jargon of the dispute resolution field, this
system is often called by the horrendous title “sequential med/arb.” First
there is a mediation. Then, if that fails, an arbitration session is sched-
uled before a different neutral. Separating the two eliminates the prob-
lem of a mediator-turned-arbitrator rendering a decision based, in part,
on information provided in confidence during the caucus stage of
mediation.
If you submitted your case to med/arb, then at some point in the
mediation—after caucuses and negotiation—the mediator might indicate
that it’s just about time to move to arbitration.
EXAMPLE: Mediator to Disputants: “I have to tell you candidly that I’m not
seeing a lot of progress here. You’ve been over the issues thoroughly several
times, both in joint session and in caucus. Some promising settlement options
have been put on the table, but I don’t see much movement. Let’s give it a little
longer, but if nothing develops, say in another hour, I will consider declaring
the mediation closed and asking that an arbitrator be assigned to conduct a
hearing and make an award.”
If you did not submit your case to med/arb and your mediation
effort was unsuccessful, you can still ask the mediator to arbitrate a
decision. (Also see Section A2, above, for a discussion of asking the
mediator for a nonbinding recommendation instead .) Of course, the
other side will have to agree to this plan, the mediator will have to be
willing to arbitrate, and the proper agreements and disclosures will have
to be signed by the parties.
8 / 10 MEDIATE, DON’T LITIGATE
4. Initiating Arbitration
If you and the other party are still at the mediation session when you
agree to arbitrate and the mediation service also handles arbitrations,
then you can both just sign an “agreement to arbitrate” form supplied by
the service. If, however, you have already left the mediation session or
the mediation service can’t help you with arbitration, then one of you
will need to begin the arbitration process much as you did mediation, by
going to an arbitration service and completing an intake form, usually
called either a “submission to arbitration” or, if your dispute is covered
by a contract that includes an arbitration clause, a “demand for arbitra-
tion.” Arbitration clauses are often found in contracts involving the
construction industry, professional sports, sales of stocks and bonds,
and employment.
8 / 12 MEDIATE, DON’T LITIGATE
No matter which form you use, it will ask you to describe the nature
of your claim and the remedy you seek, including the amount of money
(if any) at stake.
All arbitration services conduct their hearings in accordance with a
set of rules that spell out in detail such things as the duties of the
arbitrator, use of evidence, confidentiality, fees and expenses, and
appeals. Study these rules and ask questions about any provisions you
don’t understand.
5. Choosing an Arbitrator
Most arbitration services maintain rosters or “panels” of arbitrators who
have expertise in fields like business contracts, construction, personal
injuries, and employment. Staff members of the arbitration service or
panel members with more general backgrounds may also be available.
When you are ready to choose an arbitrator for your case, the service
will send you a list with the names of half a dozen or more arbitrators,
sometimes with a brief biographical sketch of each. From this list, you
will usually be asked either to cross off the names of anyone you do not
want to hear your case, or to rank in order of preference the names of
arbitrators you would like to hear your case.
The procedures and strategies for investigating and choosing arbitra-
tors from a panel are the same as for choosing a mediator. (See Chapter
3.) These include reading the material sent by the arbitration firm,
looking for someone who is knowledgeable about the subject area of the
dispute, and getting referrals from friends, businesses, community
leaders, lawyers, and others.
Although most arbitrations are conducted before one arbitrator, a
panel of three arbitrators is sometimes used, either because an arbitra-
tion clause in a contract requires it or because the parties agree to this
procedure. For example, some auto insurance policies require three
arbitrators to decide a case when a claim is made under the policy.
If You Don’t Reach an Agreement 8 / 13
D. Start a Lawsuit
If mediation fails, you still have the right to file a lawsuit (unless you
have already signed a contract to proceed to binding arbitration). To do
this, you can bring an action in civil trial court, either by hiring a lawyer
to represent you or by representing yourself.
Even if you end up having to file a lawsuit, don’t feel that the time
you spent trying to mediate was wasted. At least one study has shown
that those who tried to mediate their cases are more likely to pay a
judgment than those who never tried mediation.
EXAMPLE: Marcia was fired from her job as restaurant manager at a hotel.
Believing she had been dismissed for inappropriate reasons, she filed a wrongful
termination lawsuit against the hotel. To avoid a full-scale court battle, the
hotel’s lawyer and Marcia and her lawyer agreed to try to mediate a solution.
Following a full day of mediation, they reached an agreement to rehire Marcia
at her former position for a trial period of six months, after which she would be
evaluated and considered for permanent reinstatement. Marcia’s lawsuit would
remain inactive pending completion of the six-month period.
Three weeks after the agreement is made, Marcia’s husband learns that he will
be transferred to a new job out of state, which makes Marcia’s agreement with
the hotel unworkable. Though the hotel might have taken the position that it
had complied with its end of the agreement and would do no more, it decided
instead (for the practical reason of avoiding a likely lawsuit from Marcia) to
attend another mediation session. The result was a new agreement in which
the hotel agreed to pay Marcia a sum of money to cover most of the time she
missed from work, and to give her a favorable letter of recommendation.
EXAMPLE: Two teenage boys were arrested and charged with breaking antennas
and hood ornaments off cars at an auto dealer’s lot. As part of a mediated
agreement, the dealer agreed to drop charges if the boys would perform 40
hours of work without pay at his dealership on weekends. The boys agreed and
the mediation was closed.
Soon after, however, the owner learned that his insurance coverage prevents
anyone under the age of 18 from working on the lot. He informed the media-
tion center and suggested, as an alternative, that the teens could perform 40
hours of community service at a local camp for disabled children. The boys
agreed to the change. The center staff circulated a memo to both sides, got
their signatures, and the agreement was officially amended.
9/4 MEDIATE, DON’T LITIGATE
a. Major Problems
If you notify your mediation service or independent mediator that you
believe a major issue needs to be renegotiated in a face-to-face mediation
session, they will usually contact the other party to get consent to reopen
the mediation. For instance, consider the dispute in the first example,
above, in which the hotel was going to rehire the restaurant manager,
who then learned that her husband was being transferred to another
state. This is the kind of major issue that almost surely requires another
face-to-face mediation session. Typically, the case manager at the media-
tion service, once alerted to the problem, will contact all the parties to
arrange another session with the original mediator. The session may not
If Your Mediation Agreement Doesn’t Work 9/5
take long—everyone will be familiar with the facts of the dispute and can
begin working right away on alternative plans for a settlement.
b. Minor Problems
The best way to fix minor problems with your mediated agreement is to
negotiate them directly with the other side. Even if you need help from
the mediator or mediation service, they can often get involved without
convening another formal mediation session. Instead, the mediator or
staff will conduct “telephone shuttle diplomacy” between you and the
other side to work out the needed modification, then circulate an
amendment to the original agreement for both of you to sign. For
instance, in the second example above (concerning the teenage boys
who vandalized cars), the parties had agreed that the boys would
perform 40 hours of unpaid service at the dealership. When this became
impossible, the dealer himself suggested the boys do community service
at a camp for disabled children. To agree on this new plan, the parties
didn’t need another mediation session—the principle of having the boys
perform unpaid labor to compensate for past behavior remained the
same. Working out the details of where and when the work would now
be performed was a relatively minor issue that the center staff could
handle by phone and mail.
Case Manager to Reneging Party: “Stan, Joe told me that there’s some problem
with the agreement you both reached in mediation last summer. Can you tell
me about it?” (The case manager begins simply by offering to listen. He wants
to remain neutral until information from both sides convinces him there really
is a compliance problem.)
(Later in conversation): “From what you’re telling me, it sounds as if you’ve just
decided not to honor the agreement. If you and Joe both want, I can see about
reopening the mediation. But I have to remind you that you both agreed to
have the settlement written as a legal contract. By making the agreement a
contract, you both intended that if one of you broke it, the other could sue for
breach of contract. If Joe did that and won, you might be looking at liability
not only for what you still owe him, but also interest, damages, court costs,
and Joe’s legal fees, as well as your own. You’d risk having a judgment issued
against you that would be a matter of public record and available to banks.
Unless you paid it promptly, that could make it difficult for you to get a line of
credit for the business. Are you sure it wouldn’t be in your best interest just to
finish up the payments as you agreed?”
9/8 MEDIATE, DON’T LITIGATE
EXAMPLE: “Hello, Mr. Winters, this is Nancy Hoyer from the Center for
Dispute Resolution. I’m calling in regard to your case with Amy Present. Ms.
Present tells me there’s a problem with the way your agreement is being
followed. Is there a problem?” (Discussion follows confirming that there is a
compliance problem.)
“I notice from the file in your case that this case was referred to us by Judge
Venditto in City Court. He was willing to adjourn the case for six months if it
could be settled through mediation. I need to tell you that if you don’t comply
with the agreement, the Center will send the case back to Judge Venditto with
a recommendation that the original charges be reinstated.”
If Your Mediation Agreement Doesn’t Work 9/9
process that led to its creation. Be sure to present a copy of the contract
to the judge. Also bring a copy of the mediation service’s rules, or even a
descriptive brochure explaining how mediation is conducted. The judge
may be looking for assurance that your session was conducted fairly,
that the other party was not coerced into making the agreement, and
that both of you intended the agreement to be binding. If you take your
case to a regular trial court, you or your lawyer will need to offer the
same types of proof.
Divorce Mediation
This chapter applies to both married and unmarried couples. Tens of thou-
sands of couples in the United States, straight and gay, never
marry. When their relationships end, unmarried partners often face
many of the same issues as married couples when they separate and
divorce, including division of commonly owned assets and debts and the
custody, visitation, and support of children they have coparented.
Fortunately, unmarried couples can mediate their breakups. For ex-
ample, though courts usually won’t order mediation for unmarried
couples, court-sponsored mediation programs often are available to help
unmarried parents mediate parenting plans for their children, and
private mediators are always available to work with unmarried couples.
Although the examples in this chapter are written as though a legal
marriage had taken place (and the terms “separation” and “divorce” are
used), unmarried readers may assume the terms and examples in this
chapter also apply to them.
Divorce Mediation 10 / 3
• Spousal maintenance (alimony). How much money, if any, will one spouse
regularly pay to help cover the other’s living expenses, and for how
long?
• Child custody and visitation. Will only one parent have custody of the
children, or will custody be shared? How often, for how long, and
under what circumstances will the children spend time with each
parent? How will the parents resolve major issues like education,
medical treatment, and discipline?
• Child support. How much money will one parent regularly pay the
other to help cover the cost of raising the children?
10 / 4 MEDIATE, DON’T LITIGATE
a. Court-Sponsored Mediation
Court-sponsored mediation occurs in those states where courts can
require couples to mediate issues of child custody, visitation, and
sometimes child support. In some of these states, all couples with child-
related issues are routinely ordered to mediation. In others, judges have
the power to order mediation on a case-by-case basis. (The frequency
with which judges actually order spouses to mediation varies greatly
from one court district to another.)
Court-sponsored mediation generally doesn’t last long: just one or
two sessions is typical. This is due, in part, to the high volume of cases
passing through the mediator’s office, and to the limited scope of most
court-sponsored mediation—couples usually mediate only issues
relating to their children, not disputes over property.
Court-sponsored mediation is usually free or provided at nominal
cost. Mediators in these programs are often full-time court employees.
b. Private Mediation
In private mediation, couples voluntarily retain the services of a media-
tor of their own choosing. The couple can choose to mediate all or most
of the issues in their divorce, or to tackle only a few issues. A half dozen
or more lengthy sessions may be required, depending on the number
and complexity of issues being addressed.
Fees vary widely, from about $100 to $300/hour per couple, with
$150 per hour being typical in a mid-size city. The mediators tend to be
solo or small group practitioners who specialize in divorce and family
mediation.
Divorce Mediation 10 / 5
work. (A good mediator will usually be able to tell during the first
session if a spouse won’t be able to mediate effectively. If so, the media-
tor will terminate the session and refer the couple to a social service
agency or another professional who can help, such as a therapist.)
On the other hand, mediation does not require you and your spouse
to like each other, or even to be on speaking terms outside the media-
tion room. It is simply not true, as some divorce lawyers tell their
clients, that mediation works only for the relatively small number of
couples who remain friendly while they are splitting up. Even couples
who are dissatisfied with their marriages and angry at each other can
mediate successfully.
You can’t have it both ways. In theory, you could mediate custody
issues in a court-sponsored program and economic issues with a
private mediator, but splitting up the issues this way will probably make
it difficult to work out an agreement that recognizes the close relation-
ship between custody and economics. For example, in a comprehensive
mediation, you could agree that the parent who will have custody of the
children most of the time will receive the family home in the property
division. If you want to mediate both types of issues, it’s best to address
them together at one mediation. Because most court-sponsored pro-
grams do not handle economic issues, this means that you will probably
have to use private mediation.
2. Role of Lawyers
Although the mediator may inform you about the law, you should not
rely on the mediator to evaluate the legal consequences of a particular
approach to settlement or to recommend a decision or course of action for
you. If you need that kind of advice, you should do your own research or
get help from a lawyer. (See Chapter 13 for more information on both.)
As a practical matter, not everyone will want, or even need, to retain a
consulting lawyer. For example, if you and your spouse have no minor
children and no significant property to divide up, or if your income is
such that child support will be at the minimum level required by state law
and there will be no spousal support, it doesn’t make sense to pay a hefty
hourly fee for a lawyer’s advice during the mediation. On the other hand,
if you own a thriving business, have major stock and real estate assets,
and are looking at a potentially big claim for spousal support from your
stay-at-home spouse, you really should get good legal advice. (The lawyer
should be advising or representing just you—not both of you—because
you and your spouse will not have the same legal interests or rights.)
10 / 10 MEDIATE, DON’T LITIGATE
If you decide to pay for legal advice, here are some suggestions on
working with a lawyer during each phase of the mediation process:
• Before mediation: Consult with a lawyer or law coach to:
• During mediation: If you already understand the legal rules that apply to
your dispute, you probably won’t need a lawyer present at your
mediation. But you may want to consult with your lawyer between
sessions to review developments and get advice. If your mediation
may last only one session (as in many court-sponsored mediation
programs), try to arrange for your lawyer to be available by phone
during the session so you can consult right away, if necessary.
There may be some situations when you do want your lawyer to
accompany you to a mediation session. For example, you may expect
that a legal issue you don’t fully understand will arise during the session
and, under the court-sponsored program, a second session will not be
available. Or, you may be intimidated by your spouse and want your
lawyer there to bolster your confidence and to speak for you.
• After mediation: Have your lawyer review the agreement before you
sign it to be sure that your legal rights are protected.
Divorce Mediation 10 / 11
• Research the law. Because the state bears some responsibility for the
welfare of children, the law plays a greater role in custody and visita-
tion cases than in mediation generally. The more you know about your
state’s rules, the better you will be at negotiating an agreement that
meets your needs and complies with applicable legal rules.
• Gather evidence. If you have documents that show the value of various
items of marital property or pertain to the care of your children,
bring them to the mediation.
10 / 12 MEDIATE, DON’T LITIGATE
• utilities
• telephone
• clothing
• child care
• education
• incidentals.
If your mediation will cover financial issues like child support and/
or spousal support, bring this financial information to the mediation. If
you are going to a private mediator and you will be discussing financial
issues, your mediator will probably ask you and your spouse to prepare
detailed financial disclosure forms (usually as “homework” in advance of
the second or third mediation session). If you suspect your spouse may
be inclined to overlook or conceal assets, try quietly, before your media-
tion begins, to make a list of what you know to be your own and your
spouse’s assets.
Divorce Mediation 10 / 15
Make sure you are informed. If you have reason to believe your spouse
is hiding a pile of assets (stocks, bonds, cash, gold, ownership of
real estate), you may want to take some legal action that will allow you
to subpoena financial records (from banks and stock brokerages, for
example) and question your spouse under oath. Talk to a lawyer if you
find yourself in this situation.
Keep your head while all about you are losing theirs. It can be tough to
keep your cool in divorce mediation, especially if your spouse is
speaking in anger. Your best approach in this situation is to stay calm.
Just politely repeat that you are there to work out what’s best for your
children in the future. You can count on the mediator’s support in
helping to calm down your spouse.
children have questions or problems with the plan, the mediator will
review these with the parents. Other mediators prefer not to involve
children. Whether your children will be able to participate will depend
in part on their ages and on the rules followed by the particular court-
sponsored program or private mediator.
If you have children, relatives, or other friends whom you would
like to bring to the mediation, check the mediation brochure, or printed
rules, or call the mediation office or private mediator to see if this will be
allowed.
5. Confidentiality
As a general rule, your mediator will be required by law and/or court
rules to keep confidential everything that is said during mediation. This
means that if you do not reach a settlement and your case ends up in
court, you cannot call the mediator as a witness to tell the judge what
your spouse said during mediation. There are some important excep-
tions to this general rule, however:
• In many states, mediators are required to report reasonable suspi-
cions of child neglect or abuse. This means, for example, that if you
tell the mediator—even in private caucus—that you or your spouse
has physically abused your children, the mediator may be required
by law to report it to a social service agency for investigation.
• they are usually free (if they charge a fee, it is often calculated on a
sliding scale)
a. Getting Started
When parents with minor children file a divorce action in court, they
will automatically be kicked into a state’s mandatory mediation program
(or given information on any available voluntary program). Unmarried
couples might get into a court-sponsored program whenever one parent
files a legal action concerning the other’s parental rights and responsi-
bilities. Typically, you will receive a written notice from the court that
you are required or invited to participate in the mediation program, if
you are unable to settle matters among yourselves.
The written notice may tell you the date and time when you should
report for mediation, or may instruct you to contact the office to sched-
ule a time. Some states and courts hold mandatory orientation sessions,
explaining the mediation program. You may also be required to fill out
some paperwork, such as a questionnaire about your dispute.
Divorce Mediation 10 / 21
b. The Mediator
Many court mediators are full-time employees of the court system;
others are in private practice and work for the court part time. Most
court mediators must meet strict training and educational requirements,
although this wasn’t always the case. Today, you have a pretty good
chance of being assigned a skilled and experienced mediator through a
court-sponsored program.
In many court-sponsored programs, you will be assigned a mediator
at random, from a pool of available mediators. Sometimes, a particular
mediator will be assigned based on the facts of your case (for example, if
your child is physically disabled and has special needs, you might be
assigned a mediator who has experience with these issues).
Make your needs known if your mediation involves special issues. If you
think your case requires a mediator with special training, educa-
tion, or language ability, make this request to the staff. They will prob-
ably accommodate you if they are able.
2. Mandatory Mediation
Generally, you don’t have to do much to comply with a mandatory
mediation requirement. Most programs require only that you show up
for at least one session—you don’t have to agree to anything.
10 / 24 MEDIATE, DON’T LITIGATE
• Choosing a private mediator. If you would like to try mediation but are
leery of the court’s program, you may be able to opt out of the court
program by using a private mediator or community mediation
center. You will have to pay for the mediation if you go this route,
but it will give you an opportunity to reach a comprehensive agree-
ment, choose your own mediator, and spend more time negotiating.
It will also allow you to avoid a mediator’s recommendation.
• Domestic violence. Some states will excuse you from mandatory media-
tion if you can show that you have been a victim of violence or
abuse in your marriage. Other states will require you to mediate, but
will allow you to meet with the mediator separately, rather than in
joint sessions.
a. Mediation Strategies
Here are some tips for dealing with a mediator who has the power to
make a recommendation:
• Know—and address—applicable legal standards. If you and your
spouse are not able to reach an agreement, the mediator will have to
make a recommendation based on specific legal standards. If you
can base your presentation on those standards, it will make it easier
for the mediator to recommend in your favor. In most states, the
standard for determining custody is “the best interests of the child,”
which includes such factors as:
✓ the nature and quality of contact between the parents (that is, each
spouse’s willingness to be a coparent with the other spouse).
10 / 26 MEDIATE, DON’T LITIGATE
• Show that you can get along with your spouse. The mediator will be im-
pressed by your ability to act civilly toward your spouse. It suggests
maturity, emotional stability, and reliability—all traits a mediator
would want to see in someone asking for custody or liberal visitation.
On the other hand, if you cannot control yourself in the presence of
your spouse, it may discourage the mediator (and therefore, the
judge) from wanting to see you have custody of your kids.
1. Getting Started
To get your case into divorce mediation, you’ll have to convince your
spouse to give it a try.
• “In mediation we can both think through what we really want rather
than engaging in a legal tug of war.”
You can also offer to call several divorce mediators in your area and
have them send printed material to you and your spouse, then get back
in touch later to see if you can both agree on a mediator.
2. Choosing a Mediator
There are many thousands of mediators in the United States today who
specialize in divorce and family cases. The majority are in solo practice;
most of the rest work at community mediation centers or in small group
practices. The easiest way to find a list of divorce mediators is to look in
the telephone directory under “mediation” or “divorce.” Other resources
in your community who may be able to give you the names of divorce
mediators include:
10 / 30 MEDIATE, DON’T LITIGATE
• matrimonial lawyers
• clergy
• therapists
When you find a mediator you think you would like to work with,
there are a number of ways to evaluate his or her suitability for your
case. For example, ask for names of lawyers who have reviewed agree-
ments the mediator has drafted for other couples; the lawyers can give
you an opinion on the mediator’s technical competence. You can also
ask the mediator for references from former clients. The mediator will
not give you another client’s name, but may be willing to take your
name and have a former client call you.
10 / 32 MEDIATE, DON’T LITIGATE
• STAGE TWO: Financial Disclosure and Fact-Finding. At the end of your first
session, the mediator may give you financial worksheets asking you to
list your assets, such as bank accounts, stocks, bonds, real estate,
partnerships, pension funds, and business interests. (If your media-
tion is limited to parenting issues, you may not have to make such
detailed financial disclosures.) In some states, the information re-
quested on the forms is dictated by state law, and each spouse will
later need to affirm to the court that complete disclosure of assets was
made. You may also be asked to turn over to each other payroll
records, checkbooks, pension plan summaries, and three years’ worth
of past federal and state tax returns. You will probably spend the
second session (and perhaps longer) analyzing these records together.
• STAGE THREE: Identifying the Issues. After the financial cards have been
laid on the table, the mediator will invite discussion of the issues.
This will likely occur late in the second or early in the third session.
On some issues—who will have primary custody of the children, for
example—you may already be in agreement. But as to others—for
example, the details of visitation and amount of child support—you
may be far apart. Some property issues may also emerge that are
going to need a lot of negotiation: Should the cost of one spouse’s
professional degree be considered marital property, some of which is
owed to the nonprofessional spouse? Who should get the home
computer? Once all the issues are identified, the mediator may help
the couple decide the order in which they should be discussed.
10 / 34 MEDIATE, DON’T LITIGATE
• STAGE FOUR: Negotiations. For the next several sessions, you and your
spouse will address—in order—the issues you’ve identified. As you
cover each issue, the mediator will help you think of ways to resolve
it that you may not have thought of on your own. Often, due to
anger and emotional fatigue, couples are unable to see options for
settling disputes beyond a few obvious choices. The mediator will
help you take a fresh look at the issues in order to think of all
options for settlement. If your mediator uses caucusing, you are
most likely to caucus during the negotiation stage.
• STAGE FIVE: Agreement, Drafting the Memo, Lawyer Review, Closing. When
negotiations have concluded because an agreement has been reached,
the mediator will draft the proposed agreement, often referred to as a
“memorandum of understanding.” The mediator will review each
part with you in session to make sure the wording accurately reflects
your agreement. At this point, mediators who include children in the
process may invite you to have your older children come in for part
of a session so the mediator can explain the process you have gone
through and the decisions that have been made.
You and your spouse will each receive a copy of the draft memoran-
dum for your lawyers or other advisers to review, if you wish. Most
mediators will hold one session in reserve in case you need to come back
to discuss questions raised during this review. Typically, one or both
parties will take the final memorandum to a lawyer to be drafted into
appropriate legal form (sometimes called a “separation agreement” or
“marital settlement agreement”) and presented to the court for approval
and issuance of a legal divorce decree. In some cases, the mediator will
draft the court papers for you directly. ■
CHAPTER 11
• Control of the process. The parties will select the mediator and decide
which issues will be addressed, when sessions will be scheduled,
and how fees will be apportioned. In short, the process of mediation
is far more defined and predictable than the free-for-all of court
proceedings.
Read this chapter along with the rest of the book. This chapter does not
repeat the essential information covered in Chapters 1 through 9.
Instead, it covers only the special issues that are most likely to come up
in mediating small business disputes. To get the full picture, read the
first nine chapters of the book before you get into this material.
Mediating Business Disputes 11 / 5
1. Mediator Skills
As discussed in Chapter 3, mediators bring to their work a combination
of process skills (knowledge of how to conduct a mediation) and sub-
ject-matter skills (understanding of the subject area in dispute). Media-
tors with good process skills can handle a wide array of cases, even if
they start with very limited knowledge of the dispute’s subject matter.
3. Fees
Fees will depend on the number of parties involved, how long the
mediation lasts, whether the mediation service or independent mediator
operates nationally, regionally, or locally, and the particular mediator
you select. Typically, fees will be quoted as a combination of administra-
tive charges plus an hourly or daily rate based on the mediator’s time. In
general, for a relatively straightforward two-party mediation lasting one
full day, using a mediator from a national firm, the cost per party will be
in the range of $1,500 to $2,500. If the mediator is provided by a
regional or local company, the daily cost per party would probably be
more like $1,200–$1,500.
Business mediations may take anywhere from a day to a week of a
mediator’s time. The mediator will spend at least several hours of that
time reviewing documents submitted by the parties; the rest will be
spent in actual mediation sessions.
11 / 8 MEDIATE, DON’T LITIGATE
EXAMPLE: The owner of a pizza franchise rented space in a shopping plaza for
a new restaurant. Unfortunately, asbestos was discovered in the ceiling, and
the space was unusable for a year while the asbestos was removed. The
restaurant owner demanded $70,000 in damages from the plaza, based on his
estimates of lost profits. The plaza manager refused, saying the space had been
rented “as is,” and that, in any case, it was unlikely that a new restaurant
would have cleared a $70,000 profit. As a complicating factor, the restaurant
owner also had a contract with the franchiser, which required the restaurant
to be open by a certain date and charged the restaurant owner a monthly fee
regardless of income.
The mediation lasted two full days. On the afternoon of the second day, during
private caucuses between the mediator and each party, the general outline of a
three-way agreement took shape. Under this plan, the plaza agreed to pay the
restaurant $20,000 for lost profits and to pay the franchiser one-third of the
restaurant’s franchise fee for the months during which opening was delayed.
The franchiser agreed to forego one-third of the fee, and to look to the restau-
rant owner for the balance. But instead of paying this in cash, the restaurant
owner agreed to reduce the size of his exclusive franchise territory, which
would allow the franchiser to make up the lost income by selling another
franchise in a nearby town. In addition, once the restaurant finally opened, the
restaurant owner agreed to give the plaza manager $10,000 in gift certifi-
cates, which the manager could distribute to other tenants and their customers
to build good will and help ensure the restaurant would succeed.
2. Customer Complaints
Some of the most expensive and publicly embarrassing lawsuits a
business faces are those brought by irate customers. These can include
allegations of defective products or substandard services, misleading
advertising, and/or illegal collection practices. Some grievances are
relatively small, while others are much more serious, as might be the
case if an organized group of customers claims your advertising has
intentionally misled or defrauded them. Either way, mediation gives
your customers a confidential way to vent their anger and lets your
company settle privately without risking an adverse court decision that
might encourage similar claims. Hopefully, it also results in a happier
customer—who won’t badmouth your business until the end of time.
free air”), and unspecified damages for inhalation of the chemicals. When they
threatened to get a lawyer and bring a class action on behalf of themselves and
other former hotel guests who had experienced the same problem, the hotel
invited them to mediate, offering to pay all fees.
In mediation, the health risks claimed by the couple were discussed at length in
the presence of both parties and in private caucuses between the couple and
the mediator. Although the couple continued to claim that they had both gotten
headaches and felt nauseated during their stay, they reluctantly concluded
that they probably wouldn’t be able to prove significant long-term injuries
from inhaling the cleaning agents. The hotel manager also explained that the
hotel had some unusual difficulties on the day in question, because the assis-
tant manager abruptly quit, and a small business meeting had suddenly
demanded 20 additional rooms. The couple eventually settled with the hotel
for an apology, a cash payment equal to three times what they paid for their
room, and free passes to several restaurants and movie theaters owned by the
hotel’s parent corporation. In addition, the couple agreed in writing not to
bring any lawsuit on their own behalf or on behalf of other former hotel guests.
3. Construction Disputes
Construction disputes are particularly well-suited to mediation. Not only
do they often involve many parties (owner-developer, architect, engi-
neer, primary contractor, and subcontractors), but they also tend to
involve technical issues that might be costly and difficult to explain to a
judge or jury. In addition, because construction often halts while a
dispute is being resolved, time may be a critical factor. In fact, the cost
of having a job shut down sometimes eclipses the value of the underly-
ing dispute.
Mediating Business Disputes 11 / 11
4. Ownership Disputes
Disputes among business owners—partners, stockholders, or mem-
bers—can destroy a business and, in the case of family-owned busi-
nesses, sometimes tear a family apart. For these disputes, mediation
offers a protected forum where the parties can safely work out a private
settlement.
11 / 12 MEDIATE, DON’T LITIGATE
EXAMPLE: The widows of two brothers who together had founded a large chain
of auto service centers, were shocked when a nephew revealed that one of the
brothers had used corporate funds to develop a private real estate business on
the side. This disclosure, coupled with a demand that the money be repaid to
the company immediately, threatened to tear apart the extended family of
siblings and cousins, all of whom owned shares in the auto business. To avoid
a wrenching, public battle, the two women retained a private dispute resolu-
tion firm. After several months of mediation, the family agreed on a restruc-
turing plan. The children of the brother who had set up the real estate venture
agreed to pay the other brother’s children the present value of the approximate
amount their father had siphoned from the company. Everyone agreed that
these payments could be made over ten years. This solution kept the real estate
business on one side of the family, while at the same time dealing with the
improper diversion of cash from the business.
1. Contract Provision
If your dispute arises out of a contract that requires the parties to
mediate, you shouldn’t have a problem. Your first step in a contract
dispute is to check the contract for a mediation clause. These clauses
usually appear near the end of the contract, under a heading such as
“Mediation,” “Dispute Resolution,” or sometimes, mistakenly, “Arbitra-
tion.” Even if the contract calls for arbitration rather than mediation, you
can propose to the other party that you mediate first to see if you can
mutually arrive at a solution, thus avoiding the risk that an arbitrator
will impose a result one or both of you doesn’t like.
Mediating Business Disputes 11 / 13
2. Mini-Trials
Despite its name, a mini-trial is not a court trial at all. It’s an innovative
dispute resolution technique that allows top managers from disputing
companies to quickly hear the gist of each other’s positions, then try to
resolve the dispute. Mini-trials have been used successfully by major
corporations and government agencies.
Mini-trials are usually arranged through a private dispute resolution
company. Participants include a top official from each side who has
authority to settle, each side’s lawyers, and a neutral advisor supplied by
the dispute resolution company. The neutral advisor—companies often
like to use retired judges—should be someone who is extremely knowl-
edgeable in both the subject matter and legal issues in dispute. For the
process to work, both sides must respect this person.
11 / 20 MEDIATE, DON’T LITIGATE
As the mini-trial opens, lawyers for each side have a chance (within
strict time limits—usually half a day) to present their best arguments to
executives from both companies and the neutral advisor. This is a
unique opportunity for the executives to hear—unfiltered by their own
legal staffs—the other side’s best legal arguments. The advisor then tells
the executives what she believes are the strengths and weaknesses of
each side’s case and gives her opinion as to how a judge might decide it.
The executives then meet in private, away from their lawyers, to try to
negotiate a settlement.
The best type of dispute for a mini-trial is one that concerns a
factual, not a legal, matter. If the law is fairly clear and only the facts are
in dispute, then it is easier for the neutral advisor and executives to
make an educated guess as to how a real court might decide the case.
Mini-trials typically cost more than mediation or arbitration. Law-
yers for both sides must prepare for and make formal presentations, and
the fee for the neutral advisor is likely to be higher than you would pay
for a typical mediator. Still, even if the cost for a one- or two-day mini-
trial is as high as $10,000 per side, that is still a bargain compared with
the cost of conducting a full-blown trial in a complicated business
dispute.
If you want to set up a mini-trial to resolve a dispute involving your
company, ask one of the national or regional dispute resolution firms
listed in Appendix C to send you information about how they would
conduct this type of proceeding. ■
CHAPTER 12
A s polls, statistics, and the nightly news tell us, we are spending
more and more of our waking hours at work. This isn’t always a bad
thing—the workplace can be a source of pride, accomplishment, and
teamwork. However, it can also be a source of disputes and tension—and
lawsuits. So it’s no surprise that workplace disputes—between employers
and employees, workers and managers, or coworkers—make up an ever-
growing percentage of the caseloads of state and federal courts.
The good news is that more and more employers and employees are
turning to mediation to resolve—and even prevent—workplace prob-
lems. And with good reason—the process is well-equipped to handle the
special issues and concerns that often accompany employment disputes.
Here are some of the benefits mediation offers for dealing with work-
place problems:
• Relationship building. Particularly if the parties will continue to work
together as coworkers or as supervisor and employee, mediation
offers a valuable opportunity to air problems, work together towards
a solution, and figure out how to deal with each other in the future.
Even if no future relationship is in the cards (for example, an
employee has quit or been fired and will not return to work),
mediation allows the parties to make some sense of what hap-
pened—and to move forward with some peace of mind.
EXAMPLE: John is fired from his job as a chef for a catering company. He
believes that he was fired because he complained to his boss about unsanitary
food preparation conditions, and the company was afraid he would make a
report to the health department. The company says it fired him because his
skills were mediocre and he couldn’t meet deadlines. If John and the company
fight this one out in court, the public record will be full of allegations about the
company’s unsafe practices and John’s poor performance. This is not going to
help the company get more customers or help John get another job.
• Low cost. Mediation is always going to cost less than full-scale litiga-
tion, but this is particularly true in employment disputes. Experts
estimate that employers pay tens of thousands of dollars to defend
against a typical employee lawsuit—and that’s just on legal fees.
Employees pay a high price as well. Although they don’t have to pay
a lawyer by the hour, they can expect to fork over to their lawyer a
large percentage (between 25% and 40%) of any money they
recover. Mediation is a much cheaper alternative. In fact, it’s often
free if the parties mediate through a court-required program or a
program sponsored by a government agency (such as the Equal
Employment Opportunity Commission), and it may be free to the
employee(s) if the employer offers an in-house mediation program.
In a lawsuit, the jury would have to decide whether Sheila was discriminated
against based on her age. If the jury found that she was fired for discrimina-
tory reasons, it could make the company pay her a sum of money. If the jury
found that the company had legitimate reasons to fire her, it could give Sheila
nothing—and the judge could even make her pay the company’s legal fees, if
her lawsuit was found to be frivolous.
Instead, Sheila and the company decided to mediate. During the mediation,
both sides agreed that Sheila had done excellent work in the past, and that
they wanted to reach a solution that worked for everyone. As the mediation
progressed, it became clear that Sheila didn’t really want her job back. Her
main concerns were maintaining her health insurance coverage and getting a
new job that didn’t require as much computer work. The two parties worked
out a deal whereby the company would pay Sheila’s insurance premiums for
six months, write an honest letter of recommendation, and give Sheila the
equivalent of a few months of pay while she searched for a new job.
This chapter explains the special issues that tend to arise in employ-
ment mediation, for employers and employees. It will help you figure out:
Mediating Employment Disputes 12 / 5
• You have a dispute with a coworker. If you are having problems with a
coworker, the law may not offer you much help. Although coworker
disputes can be mightily unpleasant, they often don’t constitute legal
violations (unless sexual harassment or an assault is involved). Even
if you could make a legal claim against a coworker, there probably
isn’t much to be gained by filing a lawsuit. Unless your coworker is
independently wealthy, you aren’t likely to win a significant dam-
ages award—and even if you do, you may not be able to collect.
12 / 6 MEDIATE, DON’T LITIGATE
Mediation, on the other hand, may offer you the best chance of
figuring out how to work together more successfully—and how to
avoid problems in the future.
• You can mediate through a free or low-cost program. Many larger private
companies have in-house dispute resolution programs. Some
government agencies—including the Equal Employment Opportu-
nity Commission (EEOC), which enforces federal antidiscrimination
laws—have their own mediation programs as well. These programs
offer free or low-cost mediation services for employment disputes. If
a program like this is available to you, it makes sense to give it a try.
ers. Employees, on the other hand, often stand to win quite a bit of
money. If you have a very strong case and you’re willing to throw
the dice in court, a lawsuit may be your best bet.
• Your problem is just the tip of the iceberg. Workplace problems that are
widespread and affect many employees are not always amenable to
resolution through mediation. For example, if an employee claims
that the company’s promotion procedures are discriminatory, the
dispute could potentially involve many employees. Unless the
company is willing to consider changing its policies or practices, a
solution that resolves just one employee’s problem is not going to
put the problem to rest—for the company or the workers.
EXAMPLE: Johanna works for a grocery store chain. Although her job title is
“Assistant Manager,” she spends most of her working hours doing basic tasks
like restocking the shelves and taking inventory—as do the 30 other Assistant
Managers who work for the chain. Johanna routinely works 50 to 60 hours a
week, but doesn’t get paid for any overtime. Johanna believes that she should
be earning overtime, and that the company’s policy of not paying overtime to
Assistant Managers is illegal.
Should Johanna mediate her claim through the company’s in-house dispute
resolution program? If she does, there will be 30 “ghosts” at the negotiating
table—the other Assistant Managers, whose legal rights are also at stake. If
the company and Johanna simply agree that Johanna will start earning
overtime and the company will pay her a sum of money to compensate for the
overtime she should have earned in the past, that will solve Johanna’s problem.
But it won’t address all of the other employees who are in the same position.
Similarly, if the company agrees to change its policy, that change will affect
everyone, even though they didn’t have an opportunity to give any input. In
this case, it might make sense for Johanna—and any other interested Assistant
Managers—to talk to a lawyer before proceeding.
Mediating Employment Disputes 12 / 9
B. Choosing a Mediator
Once you’ve decided to give mediation a try, you’ll have to find a
mediator. Sometimes, this is an easy call—if your company offers an in-
house dispute resolution program, you can mediate there, at little or no
cost. And some government agencies and courts offer free or low-cost
mediation services for particular types of disputes. If neither of these
options are available to you, you can find your own private mediator.
1. Mediation Programs
There are several types of employment mediation programs that might
be available for your dispute.
b. Agency Programs
Many state and federal agencies make mediation available for employ-
ment disputes. Some agencies—such as the U.S. Postal Service—have
programs that allow their own employees to mediate workplace prob-
lems. These programs cover only public employees, however.
Some public agencies make mediation available to private employees
who file a complaint with the agency. For example, the Equal Employ-
ment Opportunity Commission (EEOC), the federal agency that takes
complaints of employment discrimination and enforces antidiscrimina-
tion laws, has a voluntary mediation program for employees who file
charges of discrimination. If the EEOC believes that mediation may be
helpful, and the employer and employee both agree, the EEOC will
Mediating Employment Disputes 12 / 11
provide free mediation services. Those who have used the EEOC pro-
gram give it pretty high marks: one survey showed that more than 90%
of participants would use the service again. Some state agencies also
offer mediation for complainants.
To learn more about the EEOC’s mediation program, visit the agency’s
website at www.eeoc.gov.
c. Court-Sponsored Programs
As explained earlier, some courts require the parties to try mediation or
some other form of dispute resolution before they can proceed with a
lawsuit. If you or your opponent has filed a lawsuit in one of these
courts, you will have the opportunity to mediate free or at a reduced
cost, using a court-appointed or staff mediator. You also have the option
of hiring (and paying for) a private mediator to meet this requirement.
2. Choosing a Mediator
If you are using an in-house or agency mediation program, you may not
have much say in choosing your mediator. However, if you have a
strong concern about the person chosen (for example, the agency
mediator is a lawyer who has sued your company before, or the in-house
mediator is good friends with your opponent in the dispute), you should
speak up. There should be some process for selecting a new mediator if
there is a conflict of interest.
If you are not mediating through a program, you will have to find
your own mediator. The best place to find a mediator for most employ-
ment disputes is through a private dispute resolution company. If the
other party has already agreed to mediate and you don’t anticipate
significant scheduling or other administrative issues, a mediator in private
practice might be a good bet. (For information on choosing between an
independent mediator and a mediation company, see Chapter 3.)
12 / 12 MEDIATE, DON’T LITIGATE
a. Mediator Skills
In many employment disputes, the parties will want a mediator who
understands employment law and small business issues. A mediator with
an employment law background can help the parties assess the strengths
and weaknesses of their positions and offer some possible solutions based
on what courts have ordered in other cases. Small business experience
can be especially valuable in disputes involving current employees or
changes to company rules and practices. A mediator who has some
knowledge of how businesses really operate can help the parties come up
with solutions that will be workable in the real world.
b. Mediator Style
The facts and personalities involved in your dispute will dictate what
type of mediator will be best equipped to help you resolve it. For a
dispute involving current employees or interpersonal relations, a facilita-
tive mediator—who acts primarily as a neutral listener—is usually the
best choice. For disputes that have already progressed to lawsuits or
agency complaints, or disputes with former employees, an evaluative
mediator—who helps the parties assess their arguments and come up
with a settlement proposal—might be a better option.
In some situations, you might want to choose the mediator who
seems best able to reach the parties, given their current emotional states
and bargaining positions. For example, if you are suing your former
employer, and the company president is a hard-nosed businessperson
who has refused to negotiate with you, you might look for a mediator
whose words will carry special weight with your opponent. A high-
powered lawyer or businessperson or a retired judge might be your best
bet in this type of case, particularly if the mediator is willing to evaluate
the merits of the case. On the other hand, if you are a small business
owner involved in a highly emotional dispute with a long-term em-
ployee, a mediator who starts talking numbers during the opening
Mediating Employment Disputes 12 / 13
statement might shut down the whole process. In this situation, you
would be better off finding a mediator who will help both sides express
their feelings and explore what’s really at stake for them in the dispute.
c. Fees
How much you pay in mediation fees will depend on how many parties
are involved in the dispute, which mediator you select, where you
mediate, and how long your mediation lasts. In generally, you can
expect to pay anywhere from $1,500 to $5,000 in total fees for a full day
of mediation.
Often, the fees are split between or among the parties. However, in
some mediations between employers and employees, the employer will
agree to shoulder a larger part of the fee burden, particularly if the
employee doesn’t have much money. It’s quite common for the parties
to agree on a different fee payment as part of the mediation settlement—
for example, they might agree that the employer will pay all of the
mediation fees, generally by reimbursing the employee for fees laid out
up front.
b. Evidence
At the mediation, you’ll want to have any documents or other evidence
that can shed some light on the dispute. Chapter 5, Section C, explains
evidence in detail, including suggestions on how to gather and present
your evidence. Here are some types of evidence that may be especially
helpful in an employment dispute:
• offer or hiring letter
• performance evaluations
• termination letter
• work samples
• attendance records.
12 / 16 MEDIATE, DON’T LITIGATE
c. Legal Research
Whether or not you decide to consult a lawyer, it’s a good idea to find
out something about your legal rights and obligations before you get to
the mediation room. Knowing what a court might do with your dispute
can help you refine your own goals for the mediation. Employees will
want to know what their rights are, whether their employer has violated
any laws, and what kinds of damages might be available in a lawsuit.
Employers will want to know what their legal duties are, whether they
have violated any employee rights, and what kinds of penalties they
might face at trial.
Nolo publishes several books about employment law, all of which
explain your rights and obligations in plain English. Employees should
check out Your Rights in the Workplace, by Barbara Kate Repa. For
employers, The Employer’s Legal Handbook, by Fred Steingold, Everyday
Employment Law, by Lisa Guerin and Amy DelPo, and Federal Employ-
ment Laws, by Amy DelPo and Lisa Guerin, can help get you started.
There are also many fine websites on workplace issues. Nolo’s own
website, at www.nolo.com, has a free legal encyclopedia with lots of
articles on employment law, written for both employers and employees.
Several government sites provide information for employees and em-
ployers—these sites include www.eeoc.gov (for discrimination issues)
and www.dol.gov (for wage and hour issues, including overtime,
compensation, time off, and family leave).
Employees should check out www.workplacefairness.org, a site with
plenty of fact sheets and resources on employment laws. Employees in
California can use the legal information available on the website of the
Employment Law Center, a project of the Legal Aid Society of San
Francisco, at www.las-elc.org. Employers can find lots of helpful infor-
mation at www.toolkit.cch.com and at www.findlaw.com (under the
“Legal Professionals” heading, click “Legal Subjects,” then “Labor &
Employment Law”).
Mediating Employment Disputes 12 / 17
D. Settlement Options
One of the great benefits of mediation is that it offers the parties a
chance to be creative in coming up with ways to resolve their dispute. In
an employment lawsuit, often the only question is whether or not one
party will have to pay money to the other. But in mediation, there are
lots of non-monetary settlement options—as well as a variety of ways to
structure a monetary settlement.
• letter of reference
• outplacement services
• apology
research the law on your own, and the availability of other advisers,
such as accountants, business valuation experts, and so on. You’ll also
have to consider whether the value of your dispute merits paying for a
lawyer. If your case concerns a multimillion dollar contract dispute that
could put your manufacturing company out of business, hiring one or
more lawyers to provide you with information and advice on contract
law, taxes, patents, and trademarks probably would be advisable—and
the cost would be reasonable, considering what you have at stake. On
the other hand, if your case concerns a dispute over a few hundred
dollars with your contractor, you probably won’t want to pay a lawyer
$150 an hour to help you prepare for mediation.
If you need more information about some legal aspect of your case,
your best bet will usually be to look it up yourself.
• Has the lawyer had any mediation training? There are two types of
mediation training available to lawyers these days. One is training to
be an actual mediator; the other is training in how to represent
clients effectively in the course of a mediation. Both show an interest
in mediation but the second type suggests a more serious profes-
sional desire to help clients through the mediation process. This is
13 / 6 MEDIATE, DON’T LITIGATE
c. Fees
When you hire a lawyer to help you with mediation, make sure you
understand how fees will be computed. Don’t expect any special price
break because you are mediating; most lawyers will charge you their
normal hourly rate. The key is to define, in advance, when and how the
lawyer will help you. For example, if the lawyer says it will take three
hours to advise you on the legal aspects of your case before the media-
tion and another three hours to review and discuss any proposed written
settlement, you’ll know that your bill will be six times the lawyer’s
hourly fee (unless, of course, you call the lawyer during the mediation
and ask for additional advice).
problem that’s similar to yours, you are probably on the right track. Of
course, a friend’s or colleague’s satisfaction with the work of a particular
lawyer is no guarantee that you will also be satisfied, but it’s a lot more
to go on than a flashy advertisement on the back cover of the local
phone book.
Other good resources are people in your community involved in the
type of activity that resulted in your dispute. For example, if you want a
lawyer who specializes in small business ownership disputes, call the
director of the local small business council and ask for names of three or
four lawyers who do that kind of work. If you do not have a business
council or similar group in your town, then pick some successful small local
businesses and ask the owners or managers who they use for legal advice
You may also want to talk to professional people in your community
who have frequent contact with lawyers and can make informed judg-
ments about the quality of their work. For example, by speaking to your
banker, accountant, insurance agent, or real estate agent, you can prob-
ably develop a short list of lawyers known for their work in these areas.
Once you have the names of several lawyers, it’s time to do a little
research. A good source of information about lawyers is the Martindale-
Hubbell Law Directory, available at most law libraries, some local public
libraries, and online at www.martindale.com. This resource contains
biographical sketches of most practicing lawyers, including information
about their experience, specialties, education, the professional organiza-
tions to which they belong, and the cases they have handled. Many firms
also list their major clients in the directory—good indication of the types
of problems these lawyers have tackled. But don’t be overly impressed by
the length of a particular lawyer’s entry—lawyers purchase the space.
With the names of several good prospects, you can begin meeting
and interviewing some lawyers. If you tell lawyers in advance that you
are shopping around, most will be willing to speak to you for a half hour
or so at no charge so you can size them up and make an informed
13 / 8 MEDIATE, DON’T LITIGATE
B. Legal Research
References to federal and state laws that affect mediation are scattered
throughout this book. Some of these laws require or allow judges to refer
disputes to mediation; others establish rules and procedures for govern-
ment-run mediation programs. You can find these statutes yourself and
read more about them. You can also research the specific laws involved in
your dispute—for example, laws about noise limits in your neighborhood,
how contracts should be interpreted, or protecting the environment.
Doing a little legal research to prepare for your mediation should not
be difficult once you understand a few basics. Which legal research
method you should use depends on what you need to find out. Usually,
people preparing for mediation want to research the law in order to:
• understand a particular area of the law
Need more detailed information on legal research? Check out these resources:
• “Do I have the right to take time off work to care for a sick family
member?”
Questions like these can be answered without regard to your specific
circumstances; they involve a general understanding of the law. To find
this type of information about a legal topic, you should turn to legal
background materials.
13 / 10 MEDIATE, DON’T LITIGATE
Here are a number of legal background resources that you may find
useful:
• Self-Help Law Books. Self-help law books, such as those published by
Nolo, are written in plain English for a nonlawyer audience. They
are an excellent starting point for cracking any legal area that is new
to you. Law libraries, public libraries, and bookstores (including
Nolo’s online bookstore at www.nolo.com) often carry self-help law
books. Nolo publishes titles on employment law, neighbor law,
Lawyers and Legal Research 13 / 11
• Treatises. If you have the time and patience to delve deeply into a
subject, you can find comprehensive books—generally known as
treatises—on virtually every legal topic. For example, if you want to
know about some aspect of trademark law, you could use McCarthy on
Trademarks, a multivolume treatise on all aspects of trademark law.
its history. For help locating your state’s website, see below. To find out
about pending federal legislation or to read the latest version of a bill, go
to the United States Congress website at http://thomas.loc.gov.
If the case is older, you can still find it on the Internet, but you may
have to pay a private company for access to its database. (Your local law
library may also have online legal resources available for searching.)
VersusLaw, at www.versusLaw.com, maintains an excellent library of older
state court cases. You can do unlimited research on VersusLaw for $9.95
per month. You can also get state cases online through Lexis and Westlaw,
commercial online legal research services. (For more information, see
“Using Westlaw and Lexis to Do Legal Research on the Web”, below.)
• “I run a business. Another company has opened nearby, and its logo
is similar to mine. Can I force them to change their look?”
These are the types of questions that people have traditionally asked
lawyers. To answer such questions, you often need to look at all of the
legal resources we have mentioned thus far. You must also make sure
that the law you find is current. If you want to undertake this type of
legal research on your own, we recommend that you use a comprehen-
sive legal research guide that walks you through the process step by
step. (See the list of resources in Section 1, above.) Here, we can provide
just a brief overview of what you’ll need to do.
When seeking the answer to a specific legal question, your ultimate
goal is to predict, as near as possible, how a judge would rule if pre-
sented with the issues and facts of your case. The closer your facts are to
the facts in previous cases or the more directly a statute applies to your
situation, the more likely you’ll be able to predict what a judge would
decide. Sometimes, your question is so basic that the answer is easy to
find. But more often, a statute won’t address each facet of your situation
and the facts of other cases won’t match up 100%. Because of this, legal
research cannot always provide a definitive answer. (That’s why lawyers
often hem and haw when asked a legal question.)
13 / 22 MEDIATE, DON’T LITIGATE
• search for cases in “case digests” (books that list cases by subject).
If you can’t find a relevant statute or other legislative enactment, you
need to look for case law only. To do this at a law library, you can:
• read any relevant cases mentioned in the background materials
• if you find a relevant case, read the cases that it mentions, and
• if you find a relevant case, use Shepard’s Citations for Cases to find
more cases that apply. (Shepard’s provides a complete list of cases
that mention your case.)
• Cases. You can check the validity of every case you find by using
Shepard’s Citations for Cases. Shepard’s will list every case that men-
tions your case, and tell you the reasons why it was mentioned. For
example, it might show that a later case overruled your case, which
means your case is no longer valid. Using Shepard’s Citations is not
simple—ask the law librarian for help.
12. Conclusion of the mediation: The mediation will conclude when the
parties have reached a settlement agreement, or upon the oral or
written request of the parties or at the discretion of the mediator.
I. Self-Determination:
A Mediator Shall Recognize that Mediation is Based on the Principle of
Self-Determination by the Parties.
II. Impartiality:
A Mediator Shall Conduct the Mediation in an Impartial Manner.
IV. Competence:
A Mediator Shall Mediate Only When the Mediator Has the Necessary
Qualifications to Satisfy the Reasonable Expectations of the Parties.
Any person may be selected as a mediator, provided that the parties are
satisfied with the mediator’s qualifications. Training and experience in
mediation, however, are often necessary for effective mediation. A person
who offers herself or himself as available to serve as a mediator gives
parties and the public the expectation that she or he has the competency
to mediate effectively. In court-connected or other forms of mandated
mediation, it is essential that mediators assigned to the parties have the
requisite training and experience.
V. Confidentiality:
A Mediator Shall Maintain the Reasonable Expectations of the Parties with
Regard to Confidentiality.
COMMENTS: The parties may make their own rules with respect to confi-
dentiality, or the accepted practice of an individual mediator or institu-
tion may dictate a particular set of expectations. Since the parties’ expec-
tations regarding confidentiality are important, the mediator should
discuss these expectations with the parties.
If the mediator holds private sessions with a party, the nature of
these sessions with regard to confidentiality should be discussed prior to
undertaking such sessions.
In order to protect the integrity of the mediation, a mediator should
avoid communicating information about how the parties acted in the
mediation process, the merits of the case, or settlement offers. The
mediator may report, if required, whether parties appeared at a sched-
uled mediation.
Where the parties have agreed that all or a portion of the informa-
tion disclosed during a mediation is confidential, the parties’ agreement
should be respected by the mediator.
Confidentiality should not be construed to limit or prohibit the
effective monitoring, research, or evaluation of mediation programs by
responsible persons. Under appropriate circumstances, researchers may
be permitted to obtain access to statistical data and, with the permission
of the parties, to individual case files, observations of live mediations,
and interviews with participants.
the discussions. The parties decide when they will reach an agreement or
terminate a mediation.
VIII. Fees:
A Mediator Shall Fully Disclose and Explain the Basis of Compensation, Fees,
and Charges to the Parties.
Mediation Organizations
American Bar Association CPR Institute for Dispute Resolution
Section on Dispute Resolution 366 Madison Avenue
740 15th St., NW New York, NY 10017
Washington, DC 20005 212-949-6490 (phone)
202-662-1000 (phone) www.cpradr.org
www.abanet.org/home.html Encourages large businesses and law firms to
Monitors and provides information on dispute use mediation and other dispute resolution
resolution and the courts, and pending and techniques (through its “ADR Pledge”) as a
enacted dispute resolution legislation. first resort to settle disputes.
Mediation Services
American Arbitration Association Federal Mediation and Conciliation Service
335 Madison Avenue, Floor 10 2100 K Street, NW
New York, NY 10017 Washington, DC 20427
212-716-5800 (phone) 202-606-8100 (phone)
www.adr.org Fax: 202-606-4251
www.fmcs.gov
Arbitration Forums, Inc.
3350 Buschwood Park Drive Institute for Christian Conciliation
Building 3, Suite 295 1537 Avenue D, Suite 352
Tampa, FL 33618 Billings, MT 59102
888-272-3453 (phone) 406-256-1583 (phone)
www.arbfile.org www.Hispeace.org
Resolve, Inc
1310 Broadway
Somerville, MA 02144
888-623-0744
www.resolve.org
ALABAMA FLORIDA
Alabama Center for Dispute Resolution Florida Conflict Resolution Consortium
P.O. Box 671 2031 East Paul Dirac Dr.
Montgomery, AL 36101 Tallahassee, FL 32310
334-269-1515 850-644-6320
www.alabamaadr.org http://consensus.fsu.edu
COLORADO MARYLAND
Office of Dispute Resolution Mediation and Conflict Resolution Office
Colorado Judicial Department 900 Commerce Road
1301 Pennsylvania Street, Suite 110 Annapolis, MD 21401
Denver, CO 80203 410-841-2260
303-837-3672 www.courts.state.md.us/macro
www.courts.state.co.us/chs/court/mediation/
odrindex.htm
Statewide Mediation Offices Appendix D / 3
MONTANA OHIO
Montana Consensus Council Ohio Commission on Dispute
1301 Lockey, 3rd Floor Resolution and Conflict Management
Department of Administration 77 South High Street
State Capitol Columbus, OH 43215
Helena, MT 59620 614-752-9595
406-444-2075 http://disputeresolution.ohio.gov
http://mcc.state.mt.us/css/default.asp
OREGON
NEBRASKA Oregon Dispute Resolution Commission
Office of Dispute Resolution 1201 Court Street NE, Suite 305
P.O. Box 98910 Salem, OR 97310
Lincoln, NE 68509 503-378-2877
402-471-3148 www.odrc.state.or.us/index.html
http://court.not.org.odr
Appendix D / 4 MEDIATE, DON’T LITIGATE
TENNESSEE VIRGINIA
Tennessee Administrative Office of the Courts Dispute Resolution Services
511 Union Street, Suite 600 Supreme Court of Virginia
Nashville, TN 37219 100 North Ninth Street
800-448-7970 Richmond, VA 23219
www.tsc.state.tn.us/index.htm 804-786-6455
www.courts.state.va.us/drs/mediators.htm
TEXAS
Center for Public Policy Dispute Resolution WASHINGTON
School of Law, Univ. of Texas at Austin Washington State ADR
727 East Dean Keeton Street 1206 Quince Street SE
Austin, TX 78705 P.O. Box 41170
512-471-3507 Olympia, WA 98504
www.utexas.edu/law/academics/centers/ 360-753-3365
cppdr/index.html www.courts.wa.gov
VERMONT WISCONSIN
The Governor’s Commission on Wisconsin Supreme Court–Court-Annexed ADR
Dispute Resolution P.O. Box 1688
109 State Street, 4th Floor Madison, WI 53701
Montpelier, VT 05609 www.courts.state.wi.us/circuit/
802-828-3217 Alternative_Dispute_Resolution_Clearinghouse.htm
■
Index
A tentative statement of, 6/41–43
See also Agreement not reached; Compliance
Absence of party, 2/18
with agreements; Enforcing agreements;
Abuse, reporting of, 2/13, 5/9, 10/18
Lawyer review of agreement; Settlement;
Accountants as consultants, 5/14
Written agreements
Acoustics experts as consultants, 5/15
Agreement to Arbitrate form, 8/11
Additional parties. See Multiple parties
Agreement to Mediate form, 5/7
ADR. See Alternative dispute resolution (ADR)
Alternative Dispute Resolution Act, 11/16
ADR Pledge, 11/16
Alternative dispute resolution (ADR)
Advocacy groups, as information source, 13/11,
options for business disputes, 11/18–20
13/22
pledges for, 11/13–15
Agencies
types of, 1/16–21, 11/19–20
finding online resources of, 13/17
See also Arbitration; Contracts specifying
mediation programs of, 12/10–11
mandatory mediation; Mediation
See also Statutes and regulations
Annotated statutes, 13/14
Agreement not reached, 8/2–14
Apologies, 6/32, 7/11, 12/18
in court-sponsored divorce mediation, 10/23
Arbiter, 1/17
lawsuit following, 8/14
Arbitration, 1/16–18, 8/7–13
reconvene the mediation, 8/3
awards, 8/13
return dispute to referral source, 8/5–6
cases suitable for, 8/8
small claims court, 8/6–7
choosing the arbitrator, 8/12–13
written recommendation by mediator, 1/18,
clause for, in written mediation agreements,
8/3–5
7/12–13, 7/26
See also Arbitration
compared to mediation, 1/17
Agreements
confidentiality of mediation and, 2/13
advisor review of, 6/43, 6/44
contracts specifying mandatory, 8/11, 11/12
changing one’s position on, 6/42–43
in divorce, 10/23
closure stage and, 6/40–44
finding services, 8/10–11
as enforceable contract, 4/17, 7/3, 7/21–26,
hybrid forms of, 1/18–19, 6/17, 8/8–10
9/10–11
initiation of, 8/11–12
interim, 6/34
lawyer representation in, 8/13
mediator’s opening statements regarding, 6/10
med/arb, 1/19, 6/17, 8/8–10
modifications to, 9/2–6
overturned decisions unlikely, 8/7–8
partial, 6/34
panel of arbitrators, 8/12–13
reneged, 9/6–11
rules for, 8/12
staged, 6/33–34
INDEX / 2 MEDIATE, DON’T LITIGATE
winnable dispute and choice of, 2/20 co-mediation team in, 11/6
Arbitrator, 1/17 confidentiality and, 5/8, 11/4
Arbitrator panels, 8/12–13 contractual obligation to mediate, 1/8
Architects as consultants, 5/14 costs of mediation, 11/3, 11/7
Arts Resolution Services, 3/14 description of dispute, 4/14–15
Asian Pacific American Dispute Resolution dispute types for mediation, 11/8–12
Center, 3/14 expanding the pie in, 6/33
Assignment of mediator, 3/23–24, 10/21 expert consultations and, 11/3, 11/16–17
Association for Conflict Resolution (ACR), 3/29 initiation of, 11/12–16
Attendees at mediation, 5/35–44 large businesses and, 11/2
additional, 5/36–37 lawyers on call during mediation and, 5/44
authority of, 5/35–36 lawyers present at mediation and, 5/42
in divorce mediation, 10/17–18 legal remedies unavailable, 2/10
in employment mediation, 12/13–14 multiple parties, 11/3
See also Lawyers at mediation; Support overripe disputes, 4/4–5
persons; Witnesses pledges for mediation as first resort, 11/12–16
Authority of mediator power imbalances and, 2/7
lack of, in mediation, 2/6 reneged agreements, 9/7
mandatory mediation and, 2/7, 6/17, 10/25–26 sample agreement, 7/18–21
Authority to mediate, 5/35–36, 12/14 selection of mediator, 3/25
Awards skills of mediator in, 11/5–6
arbitration, 8/13 small businesses and, 11/2
damages, 2/16, 2/17, 7/26 style of mediator and, 11/6
enforcement of litigation, 9/11 time requirements, 1/13
See also Agreements; Settlement trade and professional group mediation
programs, 3/13
B written agreement, 7/3, 11/18
Bar association listings, 3/17, 13/6 Business records, 5/27
Bargaining chips, listening for, 6/20–21
Baseball arbitration, 1/19 C
Bias, 3/34 Case coordinator. See Case management
Binding arbitration, 1/18 Case law, 13/17–20, 13/25
Binding mediation, 4/17 Case management, 3/3, 3/18
Blaming the mediator, 6/39, 6/43 confidentiality concerns, 5/10
Bottom line, establishment of, 5/21–23 impartiality concerns, 3/33–34
Builders as consultants, 5/14 interviewing for information, 3/35, 3/36
Bullying. See Power imbalance; Violence modifications to agreements and, 9/4–5
Business brokers as consultants, 5/14, 11/16 protection of weaker party and, 3/33
Business mediation, 11/2–20 reluctant-party contact, 3/3, 3/9, 3/18, 4/8–9,
advantages of, 11/3–4 4/18–22
alternatives to mediation, 11/18–20 reneged agreements, 9/7–8
attendees at mediation, 5/36, 5/37 selection of mediator and, 3/23–24
bottom line, establishment of, 5/21–23 style of mediation and, 3/31–32
Index Index / 3
mediator’s opening statements on, 6/9–10 independent mediators and, 1/10, 3/8–9
memorandum and, 5/33 for law coaches, 2/13–14
privilege laws and, 2/13, 5/9 law coaches and, 13/3, 13/4, 13/6
protective orders for, 5/10 of lawyer, worth of case and, 13/2–3
questions to ask regarding, 3/20 of litigation, 2/13–14, 4/23
and reference checking, 3/21 low, as advantage of mediation, 2/5, 2/13–14
rules of mediation and, 1/12, 5/8 minimizing, 3/4
of written recommendations of mediator, 8/4–5 for mini-trials, 11/20
See also Privacy for modifications to agreements, 9/5
Conflicts of interest, 3/21, 3/23–24 overview, 1/10
in divorce mediation, 10/21 private mediation companies and, 1/10, 3/8
in employment mediation, 12/11 questions to ask regarding, 3/19
resumes revealing, 3/35 for rescheduling, 5/6
Consent judgment, 7/24–25 for specialized mediation services, 3/14
Consideration, 7/23 Court-connected mediation, 3/10–12
Construction disputes, 11/10–11 assignment of mediator in, 10/21
See also Business mediation authority of mediator and, 2/7, 6/17, 10/25–26
Consultants. See Experts; Law coaches authority to sign agreement and, 5/36
Contract law, 7/22–24, 7/25–26 caucuses and, 10/21
Contracts civil cases, 3/10–11
dispute about, sample agreement for, 7/18–21 as coercive, 2/7
for divorce mediation, 10/31, 10/32 costs of, 3/11
mandatory arbitration specified in, 8/11, 11/12 criminal cases, 3/12
mediated agreement structured as, 4/17, 7/21–24, divorce mediation, 3/11, 10/4, 10/5, 10/19–26
9/9–11 employment disputes and, 12/11
See also Contracts specifying mandatory as mandatory, 1/7
mediation physical setting of, 1/11, 10/21
Contracts specifying mandatory mediation, 1/8 programs for, 1/9, 10/24
authority to sign agreements and, 5/36 release from program, reasons for, 10/24
business disputes and, 11/12–13 reneged agreements, 9/8
and desire not to mediate, 11/15 returning dispute to referral source, 8/5–6
sample clause for, 11/13 satisfaction of clients and, 9/6
Control of outcome and process, as advantage, 11/3 time involved, 1/13, 10/4
Convenience, 3/21, 5/7 training of mediators in, 3/11, 3/12, 10/21
Corporate Policy Statement on Alternatives to website of state courts requiring, 10/19
Litigation, 11/13–14 Court decisions (case law), 13/17–20, 13/25
Costs Courts, finding online resources for, 13/17
agreements stating, 1/12 CPR Institute for Dispute Resolution, 11/13–14,
for business mediation, 11/3, 11/7 11/15
community mediation centers and, 1/10, 3/4–5 Creative solutions, as advantage of mediation,
court-connected mediation and, 3/11 2/5–6, 12/4
for divorce mediation, 10/4–5 Crimes, reporting of, 2/13, 5/9
for employment mediation, 12/3, 12/6, 12/9, Criminal complaints
12/13 as factor in choice of mediation, 2/18–19, 12/7
Index Index / 5
settlement options explored with, 5/44 Leaving the mediation, 2/8, 3/13
support for mediation, importance of, 13/5–6 Legal encyclopedias, 13/11
training and expertise of, 13/4, 13/5–6 Legal precedent, choice of litigation and, 2/15,
worth of case estimated by, 5/12, 5/44 2/16, 12/7
See also Lawyer review of agreement Legal remedy. See Remedies
Law Firm Policy Statement on Alternatives to Legal research
Litigation, 11/15 background materials, 13/9–12, 13/16, 13/24
Law library research, 13/9, 13/14–15, 13/18, 13/19, case law, 13/17–20, 13/25
13/23–25, 13/26 divorce mediation and, 10/11, 10/12
finding a library, 13/10 employment mediation and, 12/16
Lawyer-arbitrators, 8/11 goals of, 13/8
Lawyer-mediators law library, finding, 13/10
bar association listings of, 3/17 mediation and dispute resolution information,
bias issues and, 3/33 13/25–26
physical setting of, 1/11 ordinances, statutes, and regulations, 13/13–17,
training and skill level of, 3/8, 3/11, 3/26 13/25
Lawyer referral services, 13/6 specific legal questions, 13/21–24
Lawyer review of agreement, 1/15, 5/44 updating research, 13/14, 13/24–25
clause in agreement allowing, 5/44 Liability, rules of mediation and, 1/13
divorce mediation, 10/10 Liability insurance, 12/14
power imbalance and, 2/8 Library research. See Law library research
Lawyers Listening skills, 6/17–18
and arbitration, 8/13 Litigation
cost of mediation compared to fees of, 2/13–14 agreement not reached in mediation and, 8/14
finding, 13/6–8 for breach of mediated agreement, 7/25–26
law libraries of, 13/10 choice of, factors involved in, 2/16–21, 12/6–8
mini-trials and, 11/19–20 compared to mediation and arbitration, 1/17
pledge to discuss mediation as choice, 11/15 confidentiality of mediation and eventual, 2/
review of contract for mediation by, 10/32 13, 5/9, 5/33, 8/7
role in mediation, 1/15–16 confidentiality protective orders and, 5/10
selection of, considerations for, 13/4–6 costs of, 2/13–14, 4/23
worth of case compared to fees of, 13/2–3 crime is involved, 2/18–19, 12/7
See also Law coaches; Lawyer-arbitrators; drawbacks of, 2/2, 2/11, 2/12
Lawyer-mediators; Lawyer review of agree- employment disputes and, 12/6–8
ment; Lawyers at mediation; Prosecutors to enforce mediated agreement, 9/10–11
Lawyers at mediation, 1/15–16 enforcing awards granted by, 9/11
background role of, 5/43 exposure of case during mediation, 2/9
divorce mediation and, 10/10 goals of mediation vs., 1/3
employment mediation and, 12/14 harm prevention and, 2/19, 12/7
opening statement and, 6/16 jackpot settlement desired, 2/16–17
reasons against, 5/42 preparation for, and overripe disputes, 4/4
reasons for, 5/42–43 privacy lost in, 2/12, 2/20
rules regarding, 3/20, 5/42 proposal of mediation during, 4/7–8, 4/22–23
Leads on a mediator. See Finding a mediator
Index Index / 9
P Privacy
arbitration and preservation of, 8/7
Paper trail, 5/4–5
business mediation and, 11/4
Partial settlements, 6/34
litigation and loss of, 2/12, 2/20
Parties to the mediation
mediation and preservation of, 2/5, 2/12–13
decision makers, 5/35–36, 12/14
small claims court and loss of, 2/29
full names used in written agreement, 7/6
See also Confidentiality
language designating, 4/14
Private Judging (form of ADR), 1/21
others involved in the dispute, 5/36–37
Private mediation companies, 1/9, 3/7–8
witnesses becoming, 5/40
arbitration through, 8/10
See also Multiple parties; Reluctance/refusal to
business mediation and, 11/6–7
mediate
costs for, 1/10, 3/8
Payment details in written agreement, 7/8–10
employment disputes and, 12/11
Personality of mediator, 3/34
physical setting of, 1/11
Philosophy. See Style and philosophy of mediator
private judging availability, 1/21
Photographs, 5/27–28
reluctant-party contact by, 4/18, 4/22
Pocket part, 13/14, 13/24–25
reneged agreements, 9/9
Power imbalance, 2/7–8
rescheduling and, 5/7
as disadvantage in mediation, 2/7
satisfaction of clients and, 9/6
effects of on mediation process, 5/41
selection of mediator, 3/19, 3/24–25
lawyers at mediation to remedy, 5/43, 10/10
training of mediators, 3/8
rules for mediators in case of, 6/38
See also Mediation services
strategies for dealing with, 2/8
Privilege laws, 2/13, 5/9
style of mediator in case of, 3/32–33
Procedures. See Initiation of mediation; Prepara-
support persons and, 2/8, 5/40–41, 5/43, 10/10
tion for mediation; Stages of mediation
Precedents, choice of litigation and, 2/15, 2/16,
Professional affiliations, 3/29
12/7
Professional courtesy, overcoming, 5/13–14
Pre-mediation memorandum. See Memorandum
Professional group mediation programs, 3/13
Preparation for mediation, 5/2–44
Professional organizations, as information
Agreement to Mediate, 5/7
source, 13/11
business mediation, 11/16
Property division in divorce mediation, 10/3
confidentiality concerns, 5/8–10
Proposal, mediator’s, 1/18, 3/32, 11/19
for divorce mediation, 10/11–17
Proposing mediation. See Initiation of mediation
for employment mediation, 12/13–16
Proprietary information, protecting, 5/10
Notice of Mediation, 5/7
Prosecutors
notices, sending, 5/4–5, 5/6
as expert consultants, 5/14–15
power imbalance and, 2/8
mediation programs of, 3/12
rescheduling, 5/6, 5/7
returning the dispute to, 8/5–6
rules of mediation, reviewing, 5/4–6
Protective orders, 5/10, 12/7
See also Evidence; Goal-setting; Legal research;
Psychological role of mediation, 1/5
Memorandum; Stages of mediation; Support
Public libraries. See Law library research
persons
Public records, 5/27
Punitive damages, 2/16, 2/17
INDEX / 12 MEDIATE, DON’T LITIGATE
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ABOUT THE AUTHORS
Peter Lovenheim, a graduate of Cornell Law School, has more than 20 years’
experience in mediation. He served as legal counsel and director of program
development for the Center for Dispute Resolution in upstate New York, and
was founder and president of a private dispute resolution company. Mr.
Lovenheim has written three previous books on mediation, as well as popular
books of narrative journalism. He lives in Rochester, New York.
Lisa Guerin worked for Nolo as a research and editorial assistant during her
years as a law student at Boalt Hall School of Law. After a stint as a staff
attorney at the U.S. Court of Appeals for the Ninth Circuit, Lisa worked
primarily in the field of employment law, in both government and private
practice. Lisa has litigated—and mediated—on behalf of her clients in all
levels of state and federal courts and in agency proceedings. At Nolo, Lisa
writes and edits books on employment law and civil litigation.