Tuesday, September 4, 2012

Mediation Connections

I recently mediated a workers' compensation claim where the individual parties were in separate States and participated by telephone. I generally start mediation with some introductory comments about the mediation process and make sure all are introduced. Then in litigated matters I ask counsel to share their perspective on the matter.  

That's how things started - claimant's counsel spoke, I did a quick summary and then defendant's counsel spoke. Toward counsel's conclusion it was mentioned that the defendant, among other challenges, was recovering from prostrate cancer treatment. Right after this statement, Plaintiff chimed in from across the country, to offer concern for defendant's condition. Turned out that claimant was a cancer survivor and there ensued a short, yet connecting exchange directly between claimant and defendant.  Later as the mediation neared its conclusion with a settlement, counsel remarked on that early exchange. Both noted that they were not sure how it would play out, but thought it helpful for their client's to have had that direct link.

As mediator, even in litigated cases, I encourage direct participant interaction. While I look to counsel for the lead, I also ask and invite all to participate. Making connections between people, even when they've never met until mediation, can help enhance the work and decisions made. So, in your next mediation, figure out how to get everyone to talk to each other. 

Wednesday, May 2, 2012

Mediation Confidentiality versus Inadmissibility

Confidentiality at mediation has been a hallmark of the process since 1991 when mediation began in our North Carolina Courts.  Further, over the years both our appellate courts and the North Carolina Industrial Commission have supported the understanding that what happens at mediation is confidential as to the mediator and inadmissible in any proceeding unless there is an agreement enforcement or sanction issue.

In agreement enforcement cases the Industrial Commission and the Courts allow participants to testify about what happened at mediation; however, the mediator is only allowed to indicate that an agreement was signed in their presence at the conclusion of mediation.  No other mediator testimony is allowed.

In sanction issues, particularly if mediator sanctions are at issue, then the mediator may testify about what happened at mediation.

A recent Advisory Opinion from the North Carolina Dispute Resolution Commission 12-22 provides further clarification about the difference between "confidentiality" and "inadmissibility."  

According to the North Carolina Standards of Conduct for Mediators and most mediation program legislation and rules, the mediator is required to keep all that occurs at mediation confidential (except as noted above).  Note - this is one of the duties of the mediator - not the parties or counsel.  

Inadmissibility is different from confidentiality.  What is said and done at mediation is not admissible in a later proceeding. This does not preclude parties and their lawyers from talking about what happened at mediation.  

This is the clarification contained in NC DRC Advisory Opinion and all mediators should clarify this distinction in their opening remarks. Counsel should make it clear to their clients that what is said and done in mediation may be inadmissible, but may not be confidential.

Tuesday, January 10, 2012

That's My Bottom Line !

I’ve heard that statement many times in mediation and so have you.  What does it mean and how should you react? 

At a recent mediation, defense counsel in private caucus after exchanging several proposals, said that’s our bottom line and presented a final figure of $20,000.  Plaintiff’s last figure was $40,000, but I knew from talking with plaintiff that they wanted to get the case settled and would be more flexible, but that $20,000 was not going to do it.  I also thought, but did not know, that the defense would pay additional funds to get the case settled.  So, I kept working the mediation process, exploring what came next if we stopped and kept folks talking.  About 45 minutes later, the case settled for $27,500.  

Thus, my approach is to accept the “bottom line” statement as a beginning point rather than the end. I’ve come to this conclusion after hearing the phrase and then, as noted above, folks are willing to pay more or accept less to settle the case.  Thus, as many statements in a mediated negotiation, the mediator must take all with an open mind. 

My point to you as mediator is to keep exploring options even when people make this statement.  If you are the advocate, rethink your use of this statement because if you say “bottom line” and don’t really mean it, but the mediator believes you, then you are done and the mediation will stop.  Find another way to firmly state your proposal without closing the door to further discussion.  Of course, there does come a time when you are done – when you’ve made your best proposal – and that’s fine.  I usually find this point after exploring a proposal three times and being told no.  That means folks are truly at their bottom line.

I once heard a mediator describe “bottom line” as a line in the sand of a desert.  It’s there and it’s real and then a wind can come up and blow it away.