In court its either the judge or the jury who are the fact finders. Judge or jury decides who wins, who loses. Lying and getting caught doing so in court can result in charges being brought against the liar and/or sanctions against an attorney. What's presented at court has to undergo discovery - a process in which the parties get informatoin with each other in preparation for trial.
Mediation is a negotiation between the parties. The mediator is neither judge nor jury nor factfinder.Although one hopes the parties are acting under a set of ethical rules and doing nothing more than bluffing or puffing up their stories - a mediator usually accepts what a party is saying as being their view of reality.
This does not mean that mediators do not see and/or sense more than that and so here's some thoughts for those preparing for and participating in mediatin sessions. Parties are able to ask questions and make requests for information. Then, and here's an example if documents are provided make sure they aren't just skimmed and put in a folder and only read at the mediation session - certainly don't leave them in the office. Read, digest, and trust but verify the validity of documents. If it's a note from a doctor - at least pull out a telephone book or other directory and verify the doctor exists and is in the field of practice claimed by a document. Read the contents - does what is written at least sound like it is from a doctor? Even when a document is passed across the table or thorugh the mediator digest what you are being given. Do not rely on a mediator - some will just not look at documents - and if they do they are not in a comfortable position to make any challelnges - nor is there, as far as I know, a requirement mediators question the validity of a document and bring it to the attention fo the parties.
Mediation is and never was a license to lie and on occasion mediators are called in front of a court because agreements have been reached in mediation caused thorugh the presentation of fraudulent information being used by one party in engotiating an agreement.
Also keep in mind that as a mediator I often hear one party in a private session tell me the other side just lied and if made too often and too ardently it may have the opposite effect - in either case it does not impact my pursuit of a dialogue and negotiation by the parties themselves.
Lying is not a good idea because it is often transparent, destroys good faith negotiation environments, and leads to further misunderstanding. As courts start to crack down on medation agreements reached through fraudulent presentation of information so parties have to consider the risk of being caught versus reaching an agreement reached by lying.
Friday, April 27, 2012
Sunday, April 15, 2012
Update - resuming work on conduct of mediation
Over the next several months I will be resuming the structure of this blog to explain mediation. Thank you for your interest and I hope you will find the informatin provided intersting.
Monday, February 20, 2012
Visit http://email.mediate.com/blogs/leoblog/ for updates
Having been careless in updating this blog please visit my other blog at http://email.mediate.com/blogs/leoblog/ which is up to date. An update to this blog - covering a subject in more detail - will be developed for posting.
Saturday, March 19, 2011
Apology - Forgiveness - Power and Challenges in Resolving Conflict
Apology and forgiveness are powerful elements which not only have their own benefits and risks but have collateral consequences as well. The tricky part is knowing when to offer, when to accept, and how to do it that is appropriate for the situation. There are also concerns about legal consequences as for example in a perception that the acts are admissions of liability or guilt. There are also issues for mediators including as to the role they play in these acts – as for example if the disputants do not bring it up – should a mediator suggestion be made and to whom?
There are cultural differences to be considered as well. In some cultures it is considered highly appropriate and even required to apologize – as in Japan when we see CEO’s and even government officials apologizing.
A further point to be made is that although there may be linkages between apology and forgiveness in a case there should not be an expectation that both will occur – and certainly there is forgiven but not forgotten often in play.
The words used and the emotions transmitted and perceived by the recipient - sincerity for example – remorse – are as key as the recipients willingness to accept or reject the offer.
Why bring up apology and forgiveness. There are profound benefits possible through this process however they are not clearly understood, appreciated, or accepted. Vengeance is in many cases as powerful a driver in conflict and overshadows apology and forgiveness. Frankly there are some acts which seemingly defy positive thoughts about apology much less forgiveness.
What are the benefits of apology? One is, that’s what a disputant is really looking for – and- in some cases that’s all that is needed to resolve conflict. From there we go to potential changes in position in terms of demands by a disputant – an apology can reduce demands for money damages. To, as we link them above, forgiveness.
What are the drawbacks? An expression of apology may be perceived as not only as sign of weakness but also an admission of wrong-doing leading to bigger claims for damages. There is concern that an apology might be used in court as evidence of an admission of liability. That’s an argument I have heard put forward in discussions.
As for a mediator role in this arena – I have heard – it depends. It may get tricky if neither party brings up the issue and a mediator is thinking about putting it forward as a mediator suggestion to move parties towards agreement. Apology is tough enough – forgiveness is even harder to gauge. What if one party buys into an apology – offers it – and it is rejected – what’s the impact on a mediators credibility and effectiveness? So, don’t think it is easy for a mediator to navigate in this arena.
Another reason is that I’ve spent the last day reviewing a session on this subject we captured on video. It is a fascinating subject. The session had a full audience which at times was very interactive. It took a full two plus hours to cover this subject and do an exercise.
Don’t underestimate the power nor the challenges in apology and forgiveness – I’ll end with one observation about forgiveness – at times the biggest benefit is to the person who forgives.
There are cultural differences to be considered as well. In some cultures it is considered highly appropriate and even required to apologize – as in Japan when we see CEO’s and even government officials apologizing.
A further point to be made is that although there may be linkages between apology and forgiveness in a case there should not be an expectation that both will occur – and certainly there is forgiven but not forgotten often in play.
The words used and the emotions transmitted and perceived by the recipient - sincerity for example – remorse – are as key as the recipients willingness to accept or reject the offer.
Why bring up apology and forgiveness. There are profound benefits possible through this process however they are not clearly understood, appreciated, or accepted. Vengeance is in many cases as powerful a driver in conflict and overshadows apology and forgiveness. Frankly there are some acts which seemingly defy positive thoughts about apology much less forgiveness.
What are the benefits of apology? One is, that’s what a disputant is really looking for – and- in some cases that’s all that is needed to resolve conflict. From there we go to potential changes in position in terms of demands by a disputant – an apology can reduce demands for money damages. To, as we link them above, forgiveness.
What are the drawbacks? An expression of apology may be perceived as not only as sign of weakness but also an admission of wrong-doing leading to bigger claims for damages. There is concern that an apology might be used in court as evidence of an admission of liability. That’s an argument I have heard put forward in discussions.
As for a mediator role in this arena – I have heard – it depends. It may get tricky if neither party brings up the issue and a mediator is thinking about putting it forward as a mediator suggestion to move parties towards agreement. Apology is tough enough – forgiveness is even harder to gauge. What if one party buys into an apology – offers it – and it is rejected – what’s the impact on a mediators credibility and effectiveness? So, don’t think it is easy for a mediator to navigate in this arena.
Another reason is that I’ve spent the last day reviewing a session on this subject we captured on video. It is a fascinating subject. The session had a full audience which at times was very interactive. It took a full two plus hours to cover this subject and do an exercise.
Don’t underestimate the power nor the challenges in apology and forgiveness – I’ll end with one observation about forgiveness – at times the biggest benefit is to the person who forgives.
Monday, January 24, 2011
Mediation - Negotiating Strategy?
One process in mediation is negotiation – from it’s about the money to I want you to do something which fulfills a need generated an issue which has come up because it trespasses on one or more of my interests, and so on. There are many books on negotiating – from the practical through the theoretical. I’m not competing against these books – I offer some thoughts and examples from my experience.
• Information game? - At times a person with better information about their case does better. Why? Your “position” is “factually” stronger than your opponents – if you can communicate your facts in a manner which is accepted or not countered by your opponent. Call it “evidence” if you must – however keep in mind that “facts” presented in mediation are not subject to the rules of evidence as they are in a trial. One accusation leveled against mediation by those who believe this is a weakness of mediation – provides a license to lie. However, here’s something to keep in mind – facts represent a view of reality – your opponent may have the same, similar, different or opposing reality. So, since, a decision to agree in mediation has to be mutual – your facts may not be the way to agreement. What else can you do?
• Alternatives – Too often it seems clients plan for and expect a solution based purely on their logic – be it fact or otherwise based – and leave themselves vulnerable to failure in reaching agreement. Even if they consider alternatives they do not spend sufficient time I thinking through the consequences of agreeing to an alternative. At other times an alternative comes up because an opponent or even a mediator provides an alternative you have not thought about. And, they accept because it sounds good at the time. Mediation is an iterative process which can consume considerable time and even intense effort. Negotiators are sometimes very clever- even gifted – at wearing down an opponent – seeming to push a case to impasse and then magically an alternative is offered – mediators often wait until it’s almost impasse before they offer a “mediators suggestion” which can be an alternative – jumping in too early may be perceived as “un-objective”. Mediators also get worn down. So, clients should be prepared to consider with and deal with alternatives which come up in mediation – don’t get caught in a state of weariness seemingly at the verge of impasse – a sudden burst of energy “have you thought about ….” followed by “would you consider this a viable alternative …” – and either reject or accept the proposal. If possible be positive – maybe it is being offered in good faith and has value – so trust but verify – think an alternative through – ask for a continuation of mediation – and for heavens sake don’t cave when you genuinely feel it doesn’t fill a need to resolve issues which hurt my interests.
• Time – So many people are unwilling to dedicate sufficient time or weigh the value of time when it comes to mediation. “I’m tired”, “I just want to get it over with”, “I’m missing work”, “this is just a waste of time”. Keep focused on the issues and just how valuable it is to resolve a conflict or dispute. Using time to advantage is sometimes effective on the part of some negotiators who are very adept at making time play in their favor. As mentioned above timing can be a critical factor. Just think about your experience in going to a car dealership where the salesperson has been trained to get and keep you engaged on what has been proven to work in the dealerships favor. Calculate your own timeline and timeliness – what works in your favor and even consider what works to the mutual benefit of you and your opponent.
• Should I be competitive or collaborative in terms of negotiating? Start by asking how big is the pie we’re negotiating over? If it’s just not big enough for the two of you then think in terms of making it bigger – through collaboration. If it’s big enough and you just want your share or your piece back then your probably better off negotiating competitively. Studies have suggested that competitive versus collaborative – competitive does better. When there’s money involved, and that’s it – then you may want to just get as much as you can – however – if there’s more than just money then you might want to alternate between competitiveness and collaboration. What about when you feel in a weak position? Should you make the first offer or let an opponent go first? Some say going first let’s you set the range in a negotiation – think about it – is this what you want to do – set the range? What about setting expectations for a negotiation on a complex set of issues? Should you stake out a position – seem open to negotiate – or be rock hard? These are all considerations in deciding on a negotiating strategy.
The biggest mistake often made is coming in unprepared – the court sent me here type of thinking – or “I don’t know the other side suggested it” or “I don’t know”. The more you know about what mediation is and the better developed your negotiating strategy is – the better chance you’ll be able to connect in a way that gives you a chance to reach mutual agreement – without, at least feeling you’re, capitulating – blaming mediation and a mediator for a failure.
• Information game? - At times a person with better information about their case does better. Why? Your “position” is “factually” stronger than your opponents – if you can communicate your facts in a manner which is accepted or not countered by your opponent. Call it “evidence” if you must – however keep in mind that “facts” presented in mediation are not subject to the rules of evidence as they are in a trial. One accusation leveled against mediation by those who believe this is a weakness of mediation – provides a license to lie. However, here’s something to keep in mind – facts represent a view of reality – your opponent may have the same, similar, different or opposing reality. So, since, a decision to agree in mediation has to be mutual – your facts may not be the way to agreement. What else can you do?
• Alternatives – Too often it seems clients plan for and expect a solution based purely on their logic – be it fact or otherwise based – and leave themselves vulnerable to failure in reaching agreement. Even if they consider alternatives they do not spend sufficient time I thinking through the consequences of agreeing to an alternative. At other times an alternative comes up because an opponent or even a mediator provides an alternative you have not thought about. And, they accept because it sounds good at the time. Mediation is an iterative process which can consume considerable time and even intense effort. Negotiators are sometimes very clever- even gifted – at wearing down an opponent – seeming to push a case to impasse and then magically an alternative is offered – mediators often wait until it’s almost impasse before they offer a “mediators suggestion” which can be an alternative – jumping in too early may be perceived as “un-objective”. Mediators also get worn down. So, clients should be prepared to consider with and deal with alternatives which come up in mediation – don’t get caught in a state of weariness seemingly at the verge of impasse – a sudden burst of energy “have you thought about ….” followed by “would you consider this a viable alternative …” – and either reject or accept the proposal. If possible be positive – maybe it is being offered in good faith and has value – so trust but verify – think an alternative through – ask for a continuation of mediation – and for heavens sake don’t cave when you genuinely feel it doesn’t fill a need to resolve issues which hurt my interests.
• Time – So many people are unwilling to dedicate sufficient time or weigh the value of time when it comes to mediation. “I’m tired”, “I just want to get it over with”, “I’m missing work”, “this is just a waste of time”. Keep focused on the issues and just how valuable it is to resolve a conflict or dispute. Using time to advantage is sometimes effective on the part of some negotiators who are very adept at making time play in their favor. As mentioned above timing can be a critical factor. Just think about your experience in going to a car dealership where the salesperson has been trained to get and keep you engaged on what has been proven to work in the dealerships favor. Calculate your own timeline and timeliness – what works in your favor and even consider what works to the mutual benefit of you and your opponent.
• Should I be competitive or collaborative in terms of negotiating? Start by asking how big is the pie we’re negotiating over? If it’s just not big enough for the two of you then think in terms of making it bigger – through collaboration. If it’s big enough and you just want your share or your piece back then your probably better off negotiating competitively. Studies have suggested that competitive versus collaborative – competitive does better. When there’s money involved, and that’s it – then you may want to just get as much as you can – however – if there’s more than just money then you might want to alternate between competitiveness and collaboration. What about when you feel in a weak position? Should you make the first offer or let an opponent go first? Some say going first let’s you set the range in a negotiation – think about it – is this what you want to do – set the range? What about setting expectations for a negotiation on a complex set of issues? Should you stake out a position – seem open to negotiate – or be rock hard? These are all considerations in deciding on a negotiating strategy.
The biggest mistake often made is coming in unprepared – the court sent me here type of thinking – or “I don’t know the other side suggested it” or “I don’t know”. The more you know about what mediation is and the better developed your negotiating strategy is – the better chance you’ll be able to connect in a way that gives you a chance to reach mutual agreement – without, at least feeling you’re, capitulating – blaming mediation and a mediator for a failure.
Wednesday, January 19, 2011
Joint and One on One Sessions
Unless there's an objection mediation sessions often start in joint session where all of the parties meet with a mediator in the presence of each other. There are many benefits to a joint session. Usually a joint session:
- saves time
- provides an opportunity for the parties to talk with each other (through the mediator or directly to their opponents)
- allows each of the parties to communicate via the non-verbal aspects of human communications (e.g. body language)
- prevents some of the misinterpretations which can occur should a mediator not fully comprehend what is to be communicated
- allows for follow-up through questions and responses to questions
- raw emotions take over and focus is lost on issues because of the presence of opponents
- being in the direct presence of opponents may constrain the exchange of information because of fear of saying something may adversely impact negotiation
- creates discomfort, stress, and pressure which a party may not handle well which adversely impacts negotiations
- an aggressive opponent may try to manipulate, intimidate, or worse a party who they feel is showing weakness.
- know your facts
- assess your situation
- know yourself
- put yourself in the others shoes
- come prepared with a negotiatin strategy
- stay focused on the issues
- if emotions start to get away ask for a break
- listen and absorb
- be flexible
- decide whether to be collaborative or competitive when negotiating an issue or expressing a need
- be prepared to receive as well as to offer alternatives
- use probing or open ended questions
- avoid being overly wordy and don't monopolize the time
- be clear
- don't be personally abusive of your opponents
- humor does have a role in negotiation - it's an ice breaker - keep it clean
- measure tone and voice
- watch your body language
- observe the others tone of voice and body language
- it's not possible to communicate effectively, or emotions are too high, or there's fear of being in the presence of opponent
- there's a need to consult with, or provide information to the mediator without the presence of opponent (remember a mediator cannot take sides or act as your or your opponents advocate in any manner so don't put mediator on the spot)
- you believe mediation is going nowhere and are seeking alternatives via a mediator reality check or suggestion
- you want to discuss a topic with mediator which you feel is essential for the mediator to understand however you do not wish what is said to be disclosed to opponent
- loss of rhytmn in negotiations
- creating a sense of stalling in your opponent
- creating a sense of weakness in you by your opponent
- acting as a catalyst in creating and maintaining dialogue between parties
- maintaining civility during mediation
- actively listening (reframing, reflecting, asking probing questions)
- being timely in intercessions
- making useful and constructive intercessions
- being empathetic to all parties interests, issues, and needs
- conducting reality checks when necessary
- respecting requests for confidentiality by a party to mediation
- being non-judgmental
- offering mediator suggestions when appropriate
- iteratively and progressively narrowing the focus towards agreement
Saturday, April 17, 2010
Ground Rules - a foundation for mediation
Our topic is mediation. Before proceeding further, about where we go from an opening statement in the process of mediation, covered in the previous bog entry, it is appropriate to back-up and discuss in detail ground rules and the role they play in mediation.
Drawing some parallels is a good start. At sea or on the water, in nautical terms we call them rules of the road. In soccer or football we call them rules of the game. In judicial terms we call them procedural rules. In mediation we apply the term ground rules. What are they and what purpose do they serve?
First let’s tell you what they are not. The biggest apparent difference between mediation and the examples used above is: in mediation there is no authority on the part of a mediator to impose a sanction for their violation – no fine, no ten yard penalty, no “you’re outta here”. A mediator relies on the cooperation of the parties and should they refuse his worst case recourse is to end a mediation.
Mediation is, to a very large degree, built on concepts of civility and respect by opponents for each other. By its nature, mediation is largely a collaborative process, problem solving, largely built on achieving or reconnecting mutual trust. Ground rules are meant to facilitate parties in collaborating and participating in problem solving.
We often start with a reminder that civility and respect are a basis for conduct of mediation. Mediations are more akin to business meetings then they are to a court room. Usually only parties and mediator are present. There’s no court clerk or armed sheriff present. Civility and respect is at times difficult to achieve and sustain where trust has been eroded or broken and emotions are running high. At times incivility and disrespect result in clients who are unable to participate or make progress in mediation.
And, unless and until a level of civility and respect are established they are better off utilizing an advocate and considering and using arbitration or litigation.
Since mediation sessions are often a three way communications it is important for the parties to have continuity and complete their statements. As a result mediators often remind clients “one speaker at a time and if you have a question write it down and ask it during your turn”. I was reminded that there are people, who for a variety of reasons, when interrupted, unable to complete the communication they are trying to make.
I find it difficult however, when one party is excessively long in making an uninterrupted statement or insists on reading lengthy statements. At times it is necessary to give them extra times at others they are being somewhat disrespectful of the other party. Consequently I find myself interrupting them myself. The listening party often has a time limit of how long they can keep focused on what is being said or the fairness of spending so much time by one party. Frustration results in such statements as “get to the point”, “tell him what you want”, or complaints about waste of time, unfairness, or worse. A persons need for time to make their points is a discussion with individual clients during preparation and accommodations are provided for in ground rules.
Coarse or foul language can also be problematic. Language can be offensive, personal in nature (name calling), and be so colorful as to actually mask critical communications. I discourage it to the degree both parties can agree.
Threatening verbal or body language can cause mediation to end quickly and if a threat is immediate, mediators are bound to react by ending mediation. A mediation setting has to be a safe setting for open dialogue and negotiation. There are no sheriff’s in a mediation setting.
In those situations where clients cannot share the same space during mediation a tool commonly used is to separate opponents to separate rooms and for mediators to shuttle between the parties. If emotions begin to run high during mediation mediators or clients can request separate sessions.
An agreement in advance, as a ground rule, to allow separate sessions to take place under such circumstances allows for choice and better prepares clients to sit by themselves while mediators are engaged with the other party. Also useful is a mechanism by which separate session do not become abuse of process by particularly verbose venting diatribes meant to derail dialogue. There are clients who need to vent or are compelled, or even find it necessary to use a lot of words to express themselves. However, this may make their opponents feel like they are being marginalized, the process unbalanced, or even unfair.
Confidentiality is of course a ground rule which, because of its importance, addressed separately and agreed to in writing. There are two elements to confidentiality. One is the confidentiality of what is said in mediation as well as agreement not to bring a mediator into litigation should a case proceed in this direction. The second element is the ability of a client to provide mediators information which is necessary for a mediator to understand but which they do not wish the other party to be privy to. As an example a client may wish to convey to a mediator something which is very personal in nature about their state of mind, health issue, or other personal predicament which is affecting their lives and impacting a case. They may not wish their opponent to be aware of a condition. Mediators are bound to keep such information confidential.
Partially because many mediators are not attorneys, as well as not to influence clients opinions, mediators are not permitted to offer legal advice in a case which they mediate. Likewise, clients need to understand that should they ask for advice, this request will be gently turned away. This is not to say that at times there are close calls between mediator suggestions and advice. The difference is that advice is specific to a question wherein a mediator suggestion is meant to be a search for alternatives for clients to consider. As an example of a request for advice might have to do with a clients query about the legal merits of their case? A mediator cannot offer his opinion in response to this question. However, there is a process of evaluative mediation in which a mediator is engaged to conduct an evaluation for clients. We are not dealing with evaluative mediation in this blog entry. As an example of a mediator suggestion consider a case in which clients are stuck on an issue, say on the amount of money to be exchanged in a transaction. A mediator may offer a suggestion to clients which bridges their difference. There are many variations on this theme which I plan to address separately.
There are many other examples, needs, and uses of ground rules which can apply to specific cases. The basic principle behind ground rules is to provide a reasonable set of boundaries which assist clients in understanding and agreeing to a process meant to encourage openness, fairness, safety, civility, respect and dignity. At times just hitting the right types of ground rules are by themselves a breakthrough for clients for whom communications have become the wild, wild West of times past.
And by the way, even though many clients don’t feel a need to pay any attention to the clothes they wear, their appearance, demeanor, or body language, these factors often play a significant factor in adding to or diminishing a mediation process. Particularly in multiple sessions, I’ve noted that clients tend to raise or change their standards based on progress in mediation.
Drawing some parallels is a good start. At sea or on the water, in nautical terms we call them rules of the road. In soccer or football we call them rules of the game. In judicial terms we call them procedural rules. In mediation we apply the term ground rules. What are they and what purpose do they serve?
First let’s tell you what they are not. The biggest apparent difference between mediation and the examples used above is: in mediation there is no authority on the part of a mediator to impose a sanction for their violation – no fine, no ten yard penalty, no “you’re outta here”. A mediator relies on the cooperation of the parties and should they refuse his worst case recourse is to end a mediation.
Mediation is, to a very large degree, built on concepts of civility and respect by opponents for each other. By its nature, mediation is largely a collaborative process, problem solving, largely built on achieving or reconnecting mutual trust. Ground rules are meant to facilitate parties in collaborating and participating in problem solving.
We often start with a reminder that civility and respect are a basis for conduct of mediation. Mediations are more akin to business meetings then they are to a court room. Usually only parties and mediator are present. There’s no court clerk or armed sheriff present. Civility and respect is at times difficult to achieve and sustain where trust has been eroded or broken and emotions are running high. At times incivility and disrespect result in clients who are unable to participate or make progress in mediation.
And, unless and until a level of civility and respect are established they are better off utilizing an advocate and considering and using arbitration or litigation.
Since mediation sessions are often a three way communications it is important for the parties to have continuity and complete their statements. As a result mediators often remind clients “one speaker at a time and if you have a question write it down and ask it during your turn”. I was reminded that there are people, who for a variety of reasons, when interrupted, unable to complete the communication they are trying to make.
I find it difficult however, when one party is excessively long in making an uninterrupted statement or insists on reading lengthy statements. At times it is necessary to give them extra times at others they are being somewhat disrespectful of the other party. Consequently I find myself interrupting them myself. The listening party often has a time limit of how long they can keep focused on what is being said or the fairness of spending so much time by one party. Frustration results in such statements as “get to the point”, “tell him what you want”, or complaints about waste of time, unfairness, or worse. A persons need for time to make their points is a discussion with individual clients during preparation and accommodations are provided for in ground rules.
Coarse or foul language can also be problematic. Language can be offensive, personal in nature (name calling), and be so colorful as to actually mask critical communications. I discourage it to the degree both parties can agree.
Threatening verbal or body language can cause mediation to end quickly and if a threat is immediate, mediators are bound to react by ending mediation. A mediation setting has to be a safe setting for open dialogue and negotiation. There are no sheriff’s in a mediation setting.
In those situations where clients cannot share the same space during mediation a tool commonly used is to separate opponents to separate rooms and for mediators to shuttle between the parties. If emotions begin to run high during mediation mediators or clients can request separate sessions.
An agreement in advance, as a ground rule, to allow separate sessions to take place under such circumstances allows for choice and better prepares clients to sit by themselves while mediators are engaged with the other party. Also useful is a mechanism by which separate session do not become abuse of process by particularly verbose venting diatribes meant to derail dialogue. There are clients who need to vent or are compelled, or even find it necessary to use a lot of words to express themselves. However, this may make their opponents feel like they are being marginalized, the process unbalanced, or even unfair.
Confidentiality is of course a ground rule which, because of its importance, addressed separately and agreed to in writing. There are two elements to confidentiality. One is the confidentiality of what is said in mediation as well as agreement not to bring a mediator into litigation should a case proceed in this direction. The second element is the ability of a client to provide mediators information which is necessary for a mediator to understand but which they do not wish the other party to be privy to. As an example a client may wish to convey to a mediator something which is very personal in nature about their state of mind, health issue, or other personal predicament which is affecting their lives and impacting a case. They may not wish their opponent to be aware of a condition. Mediators are bound to keep such information confidential.
Partially because many mediators are not attorneys, as well as not to influence clients opinions, mediators are not permitted to offer legal advice in a case which they mediate. Likewise, clients need to understand that should they ask for advice, this request will be gently turned away. This is not to say that at times there are close calls between mediator suggestions and advice. The difference is that advice is specific to a question wherein a mediator suggestion is meant to be a search for alternatives for clients to consider. As an example of a request for advice might have to do with a clients query about the legal merits of their case? A mediator cannot offer his opinion in response to this question. However, there is a process of evaluative mediation in which a mediator is engaged to conduct an evaluation for clients. We are not dealing with evaluative mediation in this blog entry. As an example of a mediator suggestion consider a case in which clients are stuck on an issue, say on the amount of money to be exchanged in a transaction. A mediator may offer a suggestion to clients which bridges their difference. There are many variations on this theme which I plan to address separately.
There are many other examples, needs, and uses of ground rules which can apply to specific cases. The basic principle behind ground rules is to provide a reasonable set of boundaries which assist clients in understanding and agreeing to a process meant to encourage openness, fairness, safety, civility, respect and dignity. At times just hitting the right types of ground rules are by themselves a breakthrough for clients for whom communications have become the wild, wild West of times past.
And by the way, even though many clients don’t feel a need to pay any attention to the clothes they wear, their appearance, demeanor, or body language, these factors often play a significant factor in adding to or diminishing a mediation process. Particularly in multiple sessions, I’ve noted that clients tend to raise or change their standards based on progress in mediation.
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