The
following
questions most frequently asked by new mediators are answered in
BASIC
SKILLS
FOR THE NEW MEDIATOR
by Allan H. Goodman
© Allan H.
Goodman - All rights reserved
THE MEDIATION
PROCESS
1. WHAT IS
MEDIATION?
2. WHAT IS THE
GOAL OF MEDIATION?
3. WHY DOES
MEDIATION WORK?
4. HOW DOES
MEDIATION WORK?
5. WHAT IS THE
DIFFERENCE BETWEEN MEDIATION AND ARBITRATION?
6. IS MEDIATION
THE SAME AS NON-BINDING ARBITRATION?
7. WHAT IF BOTH
PARTIES HAVE CLAIMS AGAINST EACH OTHER?
8. WHEN DO
PARTIES AGREE TO RESOLVE A DISPUTE BY MEDIATION?
9. ARE ALL
DISPUTES SUSCEPTIBLE TO MEDIATION?
10. SHOULD I
SUGGEST MEDIATION TO PARTIES WHO HAVE ALREADY DECIDED ON ARBITRATION?
THE ROLE OF THE
MEDIATOR
11. HOW DO
PARTIES PICK A MEDIATOR?
12. DO SOME
CASES NEED MORE THAN ONE MEDIATOR?
13. DO I HAVE
TO BE AN ATTORNEY IN ORDER TO BE A MEDIATOR?
14. HOW CAN I
UNDERSTAND THE LEGAL ISSUES IF I AM NOT AN ATTORNEY?
15. SHOULD I
HAVE THE PARTIES SIGN A WRITTEN AGREEMENT?
16. HOW DO I
PROTECT MYSELF FROM LIABILITY?
17. IF I AM A
GOOD ARBITRATOR, DOES THIS MEAN I WILL BE A GOOD MEDIATOR?
18. WHAT DO YOU
MEAN THE MEDIATOR'S AUTHORITY MUST BE EARNED?
19. WHAT
QUESTIONS DO I ASK ABOUT THE CASE WHEN I AM APPOINTED AS THE MEDIATOR?
20. WHAT
INFORMATION DO I DISCLOSE?
PRELIMINARY
PROCEDURES
21. HOW DO I
COMMUNICATE WITH THE PARTIES AFTER I AM APPOINTED AS THE MEDIATOR?
22. I'VE BEEN
APPOINTED AND I'VE MADE THE NECESSARY DISCLOSURES
- NOW WHAT DO I
DO?
23. WHAT DO I
DISCUSS IN THE PRELIMINARY CONFERENCE CALL?
24. WHAT SHOULD
THE PARTIES INCLUDE IN THE PREMEDIATION MEMORANDUM?
25. SHOULD I
LIMIT THE LENGTH OF THE PARTIES' PREMEDIATION MEMORANDUM?
26. WHAT
DOCUMENTS DO I NEED TO REVIEW AFTER I AM APPOINTED AS THE MEDIATOR?
27. WHAT
SCHEDULE SHOULD I PROPOSE FOR THE MEDIATION?
28. SHOULD THE
PARTIES BRING THEIR ATTORNEYS TO THE MEDIATION?
29. WHY ARE
ATTORNEYS SOMETIMES AN IMPEDIMENT TO MEDIATION?
30. WHAT CAN I
TELL ATTORNEYS TO EDUCATE THEM AS TO MEDIATION?
31. IS THERE
ANY ADVICE I CAN GIVE TO ATTORNEYS WHO ARE NOT
FAMILIAR WITH
MEDIATION?
32. WHAT DO THE
PARTIES NEED TO DO TO PREPARE FOR MEDIATION?
33. WHAT IF THE
PARTIES ASK ME TO ARBITRATE THE DISPUTE IF THE MEDIATION DOES NOT
RESULT IN A SETTLEMENT?
CONDUCTING THE
MEDIATION - PHYSICAL SETTING AND GENERAL PROCEDURE
34. WHERE
SHOULD THE MEDIATION BE CONDUCTED?
35. WHAT
FACILITIES DO I NEED TO CONDUCT A MEDIATION?
36. WHAT
SEATING ARRANGEMENT IS USED FOR THE MEDIATION?
37. DO I ALWAYS
NEED A CONFERENCE TABLE?
38. WHAT SHOULD
BE THE MEDIATOR'S DEMEANOR?
39. WHAT IS THE
GENERAL PROCEDURE USED AT A MEDIATION?
40. WHO IS
ALLOWED IN THE MEDIATION SESSION?
41. MAY I
EXCLUDE PARTIES FROM THE ROOM?
42. WHAT SHOULD
I DO IF FOR THE FIRST TIME AT THE MEDIATION
I RECOGNIZE A
PARTICIPANT AS SOMEONE THAT I KNOW?
43. HOW DO I
AVOID IMPROPER CONTACT WITH THE PARTIES DURING THE MEDIATION?
44. WHAT IF ONE
PARTY IS REPRESENTED BY COUNSEL AND THE OTHER IS NOT?
45. DOES
MEDIATION REQUIRE A COURT REPORTER AND A TRANSCRIPT OF THE PROCEEDINGS?
46. SHOULD I
TAKE NOTES DURING THE MEDIATION?
47. SHOULD I
ASK PERMISSION TO TAKE NOTES?
48. SHOULD I
INFORM THE PARTIES THAT I WILL DESTROY MY NOTES?
49. IS THERE
ANYTHING I SHOULD NOT DO DURING A MEDIATION?
50. WHAT IS
CO-MEDIATION?
THE JOINT
SESSION - THE MEDIATOR'S OPENING STATEMENT
51. WHAT IS THE
PURPOSE OF THE MEDIATOR'S OPENING STATEMENT?
52. HOW DO I
EXPLAIN THE MEDIATOR'S ROLE AND THE MEDIATION PROCESS IN MY OPENING
STATEMENT?
53. WHAT
AUTHORITY DO I HAVE IN THE MEDIATION PROCESS?
54. HOW DO I
BEGIN TO ESTABLISH AUTHORITY?
55. SHOULD I
DESCRIBE MY BACKGROUND IN DETAIL?
THE JOINT
SESSION - THE PARTIES' OPENING STATEMENTS
56. HOW DO THE
PARTIES PRESENT THEIR OPENING STATEMENTS?
57. WHY DO SOME
MEDIATORS CONSIDER THE PARTIES' OPENING STATEMENTS THE MOST IMPORTANT
PART OF THE MEDIATION PROCESS?
58. WHAT CAN I
LEARN FROM THE DEMEANOR OF THE PARTIES IN THE JOINT SESSION?
59. IS THERE
ANOTHER WAY TO BEGIN THE MEDIATION INSTEAD OF ALLOWING THE PARTIES TO
MAKE OPENING STATEMENTS?
60. WHAT ARE
THE ADVANTAGES AND DISADVANTAGES OF ALLOWING THE PARTIES TO MAKE
OPENING STATEMENTS?
61. HOW DO I
DISTINGUISH BETWEEN ARGUMENT AND FACT?
62. HOW DO I
REACT TO THE PARTIES' OPENING STATEMENTS?
63. WHAT CAN I
DO IF I BELIEVE AN OPENING STATEMENT IS TOO LONG OR TOO DETAILED?
64. WHAT
COMMENTS DO I MAKE AT THE CLOSE OF THE PARTIES' OPENING STATEMENTS?
65. WHAT IF A
PARTY BRINGS VOLUMINOUS DOCUMENTATION TO THE MEDIATION?
66. WHAT DO I
NEED TO ACCOMPLISH IN THE JOINT SESSION?
67. HOW DO I
ASSURE THAT I HAVE UNDERSTOOD WHAT THE PARTIES HAVE SAID IN THEIR
OPENING STATEMENT?
68. SHOULD I
RANK ISSUES IN ORDER OF PRIORITY?
THE FIRST
PRIVATE CAUCUS
69. WHAT
HAPPENS IN THE FIRST PRIVATE CAUCUS?
70. SHOULD I
HAVE THE PARTIES RANK THE ISSUES IN ORDER OF IMPORTANCE?
71. WHAT EFFECT
DOES DIVULGING CONFIDENTIAL INFORMATION HAVE ON THE PARTIES?
72. WHAT
QUESTIONS SHOULD I ASK IN THE FIRST PRIVATE CAUCUS?
73. HOW DO I
INFORM A PARTY OF A WEAKNESS IN ITS CASE?
74. 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?
75. WHAT IF A
PARTY FAILS TO ANSWER MY QUESTION IN THE PRIVATE CAUCUS?
76. HOW DO I
GET PAST A PARTY'S CERTAINTY?
77. WHAT ARE
HIDDEN AGENDA ITEMS AND WHY ARE THEY IMPORTANT?
78. WHAT ARE
"THROW-AWAY" ISSUES AND WHY ARE THEY IMPORTANT?
79. WHAT IF A
PARTY SEEKS LEGAL ADVICE FROM ME DURING THE CAUCUS?
DEALING WITH
ATTORNEYS AND EVIDENTIARY CONCEPTS
80. HOW DO I
DEAL WITH HOSTILE ATTORNEYS?
81. WILL
ATTORNEYS MAKE OBJECTIONS DURING THE MEDIATION?
82. DOES THE
PERSON WHO WROTE A DOCUMENT HAVE TO BE PRESENT AT THE MEDIATION?
83. ARE
SUMMARIES OF DOCUMENTS PROPERLY SUBMITTED IN MEDIATION?
THE SECOND
PRIVATE CAUCUS AND BEYOND - ACHIEVING SETTLEMENT
84. HOW DO THE
PARTIES MOVE TOWARDS SETTLEMENT?
85. HOW ARE
SETTLEMENT OFFERS TRANSMITTED?
86. HOW DO THE
PARTIES FINALLY REACH AGREEMENT?
87. HOW DO I
DEAL WITH A PARTY WHO LACKS SETTLEMENT AUTHORITY?
88. WHAT CAN I
DO IF THE MEDIATION REACHES AN IMPASSE?
89. SHOULD THE
PARTIES PUT ANYTHING IN WRITING AT THE END OF THE MEDIATION IF THEY
REACH AGREEMENT?
90. WHO DRAFTS
THE SETTLEMENT AGREEMENT?
91. WHAT IF I
BELIEVE THE SETTLEMENT IS NOT FAIR?
AFTER THE
MEDIATION
92. WHO MAY
DECIDE TO END THE MEDIATION?
93. 93. WHEN
ARE MY DUTIES CONCLUDED?
94. WHAT SHOULD
I DO WITH MY NOTES?
95. WHAT SHOULD
I DO WITH DOCUMENTS THE PARTIES HAVE SUBMITTED TO ME DURING THE
MEDIATION?
96. MAY I
DISCUSS THE OUTCOME OF THE MEDIATION?
97. HOW IS A
MEDIATION SETTLEMENT ENFORCED?
98. WHAT IF THE
PARTIES DO NOT ABIDE BY THEIR SETTLEMENT AGREEMENT?
GETTING PAID
99. HOW DO I
ARRANGE COMPENSATION FOR MY SERVICES?
100. HOW DO I
MAKE SURE I AM PAID?
CONCLUSION
101. THIS IS
YOUR QUESTION!
In addition to
answering the questions listed above, BASIC SKILLS FOR THE NEW MEDIATOR
contains the following appendices:
APPENDIX A
SAMPLE AGREEMENT BETWEEN MEDIATOR AND THE PARTIES
APPENDIX B THE
STAGES OF MEDIATION
APPENDIX C
EVERYTHING YOU NEVER WANTED TO KNOW ABOUT THE RULES OF EVIDENCE
© Allan H.
Goodman - All rights reserved