Get Help From the Mediator
There are three ways that you can continue to make use of the mediator’s services, even if your mediation did not lead to a settlement. You can ask the mediator to:
• adjourn and reconvene your mediation
• make a written recommendation, or
• return your dispute to the judge, prosecutor, or agency that originally referred it to mediation.
1. Reconvene the Mediation
If your session ended without agreement, you can ask the mediator and the other party to try again later. You could propose, for example, that another session be scheduled in three months. By that time, the parties’ positions or circumstances may have changed in such a way that settlement is more likely. If you and the other side are willing to give it another try, the mediator will probably be happy to schedule another session.
QSet a date right away. If you believe that another mediation session might produce a settlement, you should schedule the next meeting 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.
2. Ask for a Written Recommendation
If you and the other party respect and trust the mediator, you can ask the mediator to make a written recommendation as to how the dispute should be resolved. After all, if the mediation involved private caucuses, the mediator probably knows more about the dispute than either party does. And you really have nothing to lose—the mediator’s recommendation will not be binding. If you and the other side are both willing to accept the recommendation, you have a settlement. If either of you says no, you’re right back where you started.
The main disadvantage of having the mediator recommend a settlement is that it probably forecloses the possibility of using that mediator again in the same dispute.
A mediator who has given an opinion as to how the case should be resolved can no longer be considered neutral. So before you ask your mediator to recommend a settlement, be sure you will not want to reconvene your mediation later before that same mediator.QEncouraging the reluctant mediator. Some mediators may hesitate to
give a written recommendation to the parties because they see it as violating their pledge of neutrality. It may help to remind the mediator that a recommendation is not a legally binding decision. You and the other party will be free to decide for yourselves whether you want to follow it. You can also suggest that the mediator formally close the mediation session before making a recommendation, to avoid violating ethical standards that require the mediator to be impartial during the proceedings.
If the mediator agrees to make a recommendation, make sure that the document will not reveal anything said in confidence during private caucuses. Also, the recommendation should not contain any statements finding fault or blame with either of the parties. It should simply state the mediator’s opinion as to what steps both sides should take to create a fair and workable settlement of the dispute. Because the parties will be expected to pay the mediator for the extra time spent preparing the recommendation, you should agree on a fee in advance.
Because it is based on information obtained during the mediation, the mediator’s recommendation should be considered confidential under most mediation rules. This means that neither the mediator nor the parties would be allowed to introduce it as evidence in a later arbitration or court proceeding. Nevertheless, because you and the other party probably weren’t contemplating a written recommendation when you signed the agreement to mediate, it is a good idea to sign a separate agreement making it absolutely clear that the recommendation will be kept confidential. Ask the mediator to draft a brief confidentiality agreement to cover the recommendation, and try to get everyone to sign it before they leave the session.
Here is a sample:Confidentiality Agreement
The undersigned parties have requested____________ name of mediator________,
who acted as mediator on date________________ in regard to their dispute concerning
describe nature of dispute__, to make a written recommendation to them
about how their dispute might be resolved. The parties and the mediator agree to maintain the confidentiality of the recommendation and will not rely on it, or seek to introduce it as evidence, in any arbitration or judicial or other proceeding, nor disclose it to any regulatory agency, prosecutorial authority, or other governmental agency.
A mediator’s recommendations are typically made in writing and mailed to each of the parties within a couple of weeks after the close of the mediation session. The parties are then free to accept the proposals contained in the recommendation or to use them as a basis for further negotiations.
3. Return Your Dispute to the Judge, Prosecutor, or Other Referring Agency
If your dispute was referred to mediation by a judge or other law enforcement agency, one option (and sometimes a legal requirement) is to return the case to the person or organization that referred it to mediation in the first place. The mediator or mediation service can do this for you by sending a letter to the judge or other referral source, noting that mediation was tried but didn’t result in an 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.
Either as part of their regular procedures or at Pam’s specific request, the mediation center will send a letter to the assistant district attorney, explaining that Pam attempted mediation and still wants to press charges. Now, the attorney will consider whether the facts support issuing a warrant for Bruce’s arrest.
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.
B.