Basic Skills for the New Mediator

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ISBN: 9780967097336 | 0967097339
Cover: Paperback
Copyright: 10/1/2004

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BASIC SKILLS FOR THE NEW MEDIATOR provides a detailed overview of mediation, from the premediation conference through all stages of the mediation session. It guides the new mediator through the mediation process by answering the one hundred questions most frequently asked by new mediators. BASIC SKILLS FOR THE NEW MEDIATOR has been used successfully for self-instruction and as a training manual. Experienced mediators and attorneys who represent clients in mediation will also find this book extremely useful. The Appendix "Everything You Never Wanted to Know About the Rules of Evidence" is especially valuable for the non-attorney mediator, who must often deal with the evidentiary vocabulary of the legal profession. You will learn to establish your authority as a mediator, schedule the mediation session, deliver the mediator's opening statement, prioritize issues, preside during joint sessions,conduct private caucuses, overcome impasses, identify "hidden agenda" and "throwaway" items, deal with parties who lack settlement authority, and aid parties to achieve a viable settlement.

Introduction	p. 17
One Hundred Questions and Answers	p. 19
The Mediation Process	p. 22
What is Mediation?	p. 22
What is the Goal of Mediation?	p. 22
Why Does Mediation Work?	p. 22
How Does Mediation Work?	p. 23
What is the Difference Between Mediation and Arbitration?	p. 23
Is Mediation the Same as Non-Binding Arbitration?	p. 24
What if Both Parties Have Claims Against Each Other?	p. 25
When do Parties Agree to Resolve A Dispute by Mediation?	p. 25
Are All Disputes Susceptible to Mediation?	p. 26
Should I Suggest Mediation to Parties Who Have Already Decided on Arbitration?	p. 27
The Role of The Mediator	p. 30
How do Parties Pick a Mediator?	p. 30
Do Some Cases Need More Than One Mediator?	p. 30
Do I Have to be an Attorney in Order to be a Mediator?	p. 30
How can I Understand the Legal Issues if I am Not an Attorney?	p. 31
Should I Have the Parties Sign a Written Agreement?	p. 31
How Do I Protect Myself from Liability?	p. 32
If I am a Good Arbitrator, does This Mean I Will be a Good Mediator?	p. 32
What do You Mean the Mediator's Authority Must be Earned?	p. 33
What Questions do I Ask About the Case When I am Appointed as the Mediator?	p. 33
What Information do I Disclose?	p. 34
Preliminary Procedures	p. 36
How Do I Communicate with the Parties after I am Appointed as the Mediator?	p. 36
I've been Appointed and I've Made the Necessary Disclosures - Now What do I do?	p. 36
What do I Discuss in the Preliminary Conference Call?	p. 37
What Should the Parties Include in the Premediation Memorandum?	p. 37
Should I Limit the Length of the Parties' Premediation Memorandum?	p. 38
What Documents do I Need to Review After I am Appointed as the Mediator?	p. 38
Basic Skills for the New Mediator
What Schedule Should I Propose for the Mediation?	p. 39
Should the Parties Bring Their Attorneys to the Mediation?	p. 39
Why are Attorneys Sometimes an impediment to Mediation?	p. 40
What Can I Tell Attorneys to Educate Them as to Mediation?	p. 40
Is There any Advice I can Give to Attorneys Who are not Familiar with Mediation?	p. 41
What do the Parties Need to do to Prepare for Mediation?	p. 41
What if the Parties Ask Me to Arbitrate the Dispute if the Mediation Does Not Result in a Settlement?	p. 42
Conducting the Mediation- Physical Setting and General Procedure	p. 44
Where Should the Mediation be Conducted?	p. 44
What Facilities do I Need to Conduct a Mediation?	p. 44
What Seating Arrangement is Used for the Mediation?	p. 44
Do I Always Need a Conference Table?	p. 45
What Should be the Mediator's Demeanor?	p. 45
What is the General Procedure Used at a Mediation?	p. 46
Who is Allowed in the Mediation Session?	p. 48
May I Exclude Parties From the Room?	p. 48
What Should I do if for the First Time at the Mediation I Recognize a Participant as Someone That I Know?	p. 49
How Do I Avoid Improper Contact With the Parties During the Mediation?	p. 50
What if One Party is Represented by Counsel and the Other is Not?	p. 51
Does Mediation Require a Court Reporter and a Transcript of the Proceedings?	p. 51
Should I Take Notes During the Mediation?	p. 51
Should I Ask Permission to Take Notes?	p. 52
Should I Inform the Parties That I Will Destroy My Notes?	p. 52
Is There Anything I Should Not Do During a Mediation?	p. 53
What is Co-Mediation?	p. 53
The Joint Session - The Mediator's Opening Statement	p. 56
What is the Purpose of the Mediator's Opening Statement?	p. 56
How Do I Explain the Mediator's Role and the Mediation Process in My Opening Statement?	p. 56
What Authority do I Have in the Mediation Process?	p. 58
How Do I Begin to Establish Authority?	p. 58
Should I Describe My Background in Detail?	p. 59
The Joint Session - the Parties' Opening Statements	p. 62
How Do the Parties Present Their opening Statements?	p. 62
Why Do Some Mediators Consider the Parties' Opening Statements the Most Important Part of the Mediation Process?	p. 62
What Can I Learn from the Demeanor of the Parties in the Joint Session?	p. 63
Is There Another Way to Begin the Mediation Instead of Allowing the Parties to Make Opening Statements?	p. 63
What are the Advantages and Disadvantages of Allowing the Parties to Make Opening Statements?	p. 64
How do I Distinguish Between Argument and Fact?	p. 64
How do I React to the Parties' Opening Statements?	p. 65
What Can I Do if I Believe an Opening Statement is Too Long or Too Detailed?	p. 65
What Comments do I Make at the Close of the Parties' Opening Statements?	p. 66
What if a Party Brings Voluminous Documentation to the Mediation?	p. 66
What Do I Need to Accomplish in the Joint Session?	p. 67
How do I Assure That I Have Understood What the Parties Have said in Their Opening Statement?	p. 68
Should I Rank Issues in Order of Priority?	p. 68
The First Priv Ate Caucus	p. 72
What Happens in the First Private Caucus?	p. 72
Should I Have the Parties Rank the Issues in Order of Importance?	p. 72
What Effect Does Divulging Confidential Information Have on the Parties?	p. 73
What Questions Should I ask in the First Private Caucus?	p. 73
How Do I Inform a Party of a Weakness in Its Case?	p. 75
If it Appears That There is an Important Question or an Issue That Both Parties are Intentionally Avoiding, Should I ask the Question or Raise the Issue?	p. 76
What if a Party Fails to Answer My Question in the Private Caucus?	p. 76
How do I Get Past A Party's Certainty?	p. 76
What are Hidden Agenda Items and Why are They Important?	p. 77
What are "Throw-Away" Issues and Why are They Important?	p. 78
What if A Party Seeks Legal Advice From Me During the Caucus?	p. 79
Dealing with Attorneys and Evidentiary Concepts	p. 80
How Do I Deal With Hostile Attorneys?	p. 80
Will Attorneys Make Objections During the Mediation?	p. 81
Does the Person Who Wrote A Document Have to Be Present at the Mediation?	p. 83
Are Summaries of Documents Properly Submitted in Mediation?	p. 83
The Second Private Caucus and Beyond - Achieving Settlement	p. 86
How Do the Parties Move Towards Settlement?	p. 86
How Are Settlement Offers Transmitted?	p. 87
How Do the Parties Finally Reach Agreement?	p. 88
How Do I Deal With a Party Who Lacks Settlement Authority?	p. 88
What Can I do if the Mediation Reaches an Impasse?	p. 89
Should the Parties Put Anything in Writing at the End of the Mediation if They Reach Agreement?	p. 90
Who Drafts the Settlement Agreement?	p. 91
What if I Believe the Settlement is Not Fair?	p. 91
After the Mediation	p. 94
Who May Decide to End the Mediation?	p. 94
When are My Duties Concluded?	p. 94
What Should I do With My Notes?	p. 94
What Should I do With Documents the Parties Have Submitted to Me During the Mediation?	p. 95
May I Discuss the Outcome of the Mediation?	p. 95
How is a Mediation Settlement Enforced?	p. 96
What if the Parties do Not Abide by Their Settlement Agreement?	p. 96
Getting Paid	p. 98
How Do I Arrange Compensation for My Services?	p. 98
How Do I Make Sure I am Paid?	p. 99
Conclusion	p. 100
This is Your Question!	p. 100
Appendices
Sample Agreement Between Mediator and the Parties	p. 102
The Stages of Mediation	p. 105
Everything You Never Wanted to Know About the Rules of Evidence	p. 108
Do I Need to Know The Rules of Evidence?	p. 108
What Does it Mean That Information is Irrelevant?	p. 109
What is Hearsay?	p. 109
What Reaction Should I have to Statements That are Irrelevant or Hearsay?	p. 111
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Basic Skills for the New Mediator

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