Index

A

Absence of party, 2/18

Abuse, reporting of, 2/13, 5/9, 10/18

Accountants as consultants, 5/14

Acoustics experts as consultants, 5/15

Additional parties. See Multiple parties

ADR.

Advocacy groups, as information source, 13/11, 13/22

Agencies

finding online resources of, 13/17

mediation programs of, 12/10-11

See also Statutes and regulations

Agreement not reached, 8/2-14

in court-sponsored divorce mediation, 10/23 lawsuit following, 8/14

reconvene the mediation, 8/3

return dispute to referral source, 8/5-6 small claims court, 8/6-7

written recommendation by mediator, 1/18, 8/3-5

See also Arbitration

Agreements

advisor review of, 6/43, 6/44

changing one's position on, 6/42-43

closure stage and, 6/40-44

as enforceable contract, 4/17, 7/3, 7/21-26, 9/10-11

interim, 6/34

mediator's opening statements regarding, 6/10 modifications to, 9/2-6

partial, 6/34

reneged, 9/6-11

staged, 6/33-34

tentative statement of, 6/41-43

See also Agreement not reached; Compliance with agreements; Enforcing agreements; Lawyer review of agreement; Settlement; Written agreements

Agreement to Arbitrate form, 8/11

Agreement to Mediate form, 5/7

Alternative Dispute Resolution Act, 11/16

Alternative dispute resolution (ADR)

options for business disputes, 11/18-20 pledges for, 11/13-15

types of, 1/16-21, 11/19-20

See also Arbitration; Contracts specifying mandatory mediation; Mediation

Annotated statutes, 13/14

Apologies, 6/32, 7/11, 12/18

Arbiter, 1/17

Arbitration, 1/16-18, 8/7-13

awards, 8/13

cases suitable for, 8/8

choosing the arbitrator, 8/12-13 clause for, in written mediation agreements, 7/12-13, 7/26

compared to mediation, 1/17 confidentiality of mediation and, 2/13 contracts specifying mandatory, 8/11, 11/12 in divorce, 10/23

finding services, 8/10-11

hybrid forms of, 1/18-19, 6/17, 8/8-10 initiation of, 8/11-12

lawyer representation in, 8/13 med/arb, 1/19, 6/17, 8/8-10 overturned decisions unlikely, 8/7-8 panel of arbitrators, 8/12-13 rules for, 8/12

winnable dispute and choice of, 2/20 Arbitrator, 1/17

Arbitrator panels, 8/12-13 Architects as consultants, 5/14 Arts Resolution Services, 3/14

Asian Pacific American Dispute Resolution Center, 3/14

Assignment of mediator, 3/23-24, 10/21 Association for Conflict Resolution (ACR), 3/29 Attendees at mediation, 5/35-44

additional, 5/36-37

authority of, 5/35-36

in divorce mediation, 10/17-18

in employment mediation, 12/13-14

See also Lawyers at mediation; Support persons; Witnesses

Authority of mediator

lack of, in mediation, 2/6

mandatory mediation and, 2/7, 6/17, 10/25-26 Authority to mediate, 5/35-36, 12/14

Awards

arbitration, 8/13 damages, 2/16, 2/17, 7/26 enforcement of litigation, 9/11 See also Agreements; Settlement

B

Bar association listings, 3/17, 13/6 Bargaining chips, listening for, 6/20-21 Baseball arbitration, 1/19

Bias, 3/34

Binding arbitration, 1/18

Binding mediation, 4/17

Blaming the mediator, 6/39, 6/43 Bottom line, establishment of, 5/21-23

Builders as consultants, 5/14

Bullying.

advantages of, 11/3-4

alternatives to mediation, 11/18-20 attendees at mediation, 5/36, 5/37 bottom line, establishment of, 5/21-23 co-mediation team in, 11/6 confidentiality and, 5/8, 11/4 contractual obligation to mediate, 1/8 costs of mediation, 11/3, 11/7 description of dispute, 4/14-15 dispute types for mediation, 11/8-12 expanding the pie in, 6/33 expert consultations and, 11/3, 11/16-17 initiation of, 11/12-16 large businesses and, 11/2 lawyers on call during mediation and, 5/44 lawyers present at mediation and, 5/42 legal remedies unavailable, 2/10 multiple parties, 11/3 overripe disputes, 4/4-5 pledges for mediation as first resort, 11/12-16 power imbalances and, 2/7 reneged agreements, 9/7 sample agreement, 7/18-21 selection of mediator, 3/25 skills of mediator in, 11/5-6 small businesses and, 11/2 style of mediator and, 11/6 time requirements, 1/13 trade and professional group mediation programs, 3/13

written agreement, 7/3, 11/18

Business records, 5/27

C

Case coordinator. See Case management Case law, 13/17-20, 13/25 Case management, 3/3, 3/18 confidentiality concerns, 5/10 impartiality concerns, 3/33-34 interviewing for information, 3/35, 3/36 modifications to agreements and, 9/4-5 protection of weaker party and, 3/33 reluctant-party contact, 3/3, 3/9, 3/18, 4/8-9, 4/18-22

reneged agreements, 9/7-8 selection of mediator and, 3/23-24 style of mediation and, 3/31-32

subject-matter expertise and, 3/30

See also Mediation services

Caucuses, 1/14-15, 6/26-36 abuse or criminal activity reportable if revealed in, 10/18

arbitration following mediation and, 8/10 confidentiality and, 6/28

court-connected mediation and, 10/21 evidence consultation during, 5/31 exceptions to use of, 1/15-16, 6/27 interim agreement discussions, 6/34 interpretation by mediator in, 6/29 length and frequency of, 6/28 mediator's opening statements on, 6/9 negotiation by mediator resulting from, 6/35-36 parties challenged by mediator in, 6/29-31 preparation for, 5/5 procedure for, 6/27 purpose of, 6/27, 6/28-29 settlement options developed during, 6/31-34 strategy of mediator in, 6/28-34

Certification, 3/27

Checks, acceptance as payment, 7/9

Child abuse

and release from mandatory mediation, 10/24 reporting of, 2/13, 10/18

Child custody and visitation impressing the mediator and, 10/16-17 as issue for mediation, 10/3 mediator's recommendation and, 10/25-26

Child support, 10/3

Choice of mediation, 2/2-21 advantages, 2/4-6, 2/9-15 disadvantages, 2/6-9, 2/16-20 table summarizing factors involved in, 2/21 types of disputes possible, 2/3-4

Citation for statute or regulation, reading, 13/15 Cities and counties

employees of as consultants, 5/15 ordinances of, 13/13

Civil cases, 3/10-11

Claimant, 4/14

Closure, 1/15

Closure stage, 6/40-44

Colorado Pledge, 11/14 Co-mediation teams, 3/22, 3/30, 11/6 Common law, 13/17

Community mediation centers, 1/9, 3/4-6 arbitration through, 8/8

business mediation and, 11/7 caucus policies of, 1/15, 6/27 costs for, 1/10, 3/4-5 memorandum rules in, 5/31 physical setting of, 1/11, 3/5 reluctant-party contact by, 4/18, 4/22, 4/23 reneged agreements, 9/8, 9/9 satisfaction of clients and, 9/6 selection of mediator in, 3/5, 3/19, 3/23-25 time requirements, 1/13 training of mediators in, 3/6 website resource, 3/5

See also Mediation services

Competence of party, 2/18 Compliance with agreements

mediation and arbitration clauses protecting, 7/11-13, 7/26

voluntary, 7/21

when not an issue, 7/21-22, 7/25 written agreement as encouraging, 7/3 See also Enforcing agreements

Compromise

lawyer choice and need for, 13/5 as settlement option, 6/31-32

Conciliation (form of ADR), 1/20 Conference rooms, 1/11-12, 6/6 Confidentiality, 5/8-10

as advantage of mediation, 2/5, 2/12-13 business mediation and, 11/4 caucuses and, 6/28

criminal activity/abuse and lack of, 2/13, 5/9, 10/18-19

divorce mediation exceptions to, 10/18-19 and employment mediation, 12/2-3, 12/6 ethical rules for mediators, 5/8-9 eventual litigation and, 2/13, 5/9, 5/33, 8/7 evidentiary rules and, 5/9 mediator's opening statements on, 6/9-10 memorandum and, 5/33 privilege laws and, 2/13, 5/9 protective orders for, 5/10 questions to ask regarding, 3/20 and reference checking, 3/21 rules of mediation and, 1/12, 5/8 of written recommendations of mediator, 8/4-5 See also Privacy

Conflicts of interest, 3/21, 3/23-24

in divorce mediation, 10/21

in employment mediation, 12/11 resumes revealing, 3/35

Consent judgment, 7/24-25

Consideration, 7/23

Construction disputes, 11/10-11

See also Business mediation

Consultants.

Contracts

dispute about, sample agreement for, 7/18-21 for divorce mediation, 10/31, 10/32 mandatory arbitration specified in, 8/11, 11/12 mediated agreement structured as, 4/17, 7/21-24, 9/9-11

See also Contracts specifying mandatory mediation

Contracts specifying mandatory mediation, 1/8 authority to sign agreements and, 5/36 business disputes and, 11/12-13 and desire not to mediate, 11/15 sample clause for, 11/13

Control of outcome and process, as advantage, 11/3 Convenience, 3/21, 5/7

Corporate Policy Statement on Alternatives to

Litigation, 11/13-14

Costs

agreements stating, 1/12

for business mediation, 11/3, 11/7 community mediation centers and, 1/10, 3/4-5 court-connected mediation and, 3/11 for divorce mediation, 10/4-5

for employment mediation, 12/3, 12/6, 12/9, 12/13

independent mediators and, 1/10, 3/8-9

for law coaches, 2/13-14

law coaches and, 13/3, 13/4, 13/6

of lawyer, worth of case and, 13/2-3

of litigation, 2/13-14, 4/23

low, as advantage of mediation, 2/5, 2/13-14 minimizing, 3/4

for mini-trials, 11/20

for modifications to agreements, 9/5

overview, 1/10

private mediation companies and, 1/10, 3/8 questions to ask regarding, 3/19 for rescheduling, 5/6

for specialized mediation services, 3/14 Court-connected mediation, 3/10-12

assignment of mediator in, 10/21

authority of mediator and, 2/7, 6/17, 10/25-26 authority to sign agreement and, 5/36 caucuses and, 10/21

civil cases, 3/10-11

as coercive, 2/7

costs of, 3/11

criminal cases, 3/12

divorce mediation, 3/11, 10/4, 10/5, 10/19-26 employment disputes and, 12/11

as mandatory, 1/7

physical setting of, 1/11, 10/21

programs for, 1/9, 10/24

release from program, reasons for, 10/24 reneged agreements, 9/8

returning dispute to referral source, 8/5-6 satisfaction of clients and, 9/6 time involved, 1/13, 10/4

training of mediators in, 3/11, 3/12, 10/21 website of state courts requiring, 10/19

Court decisions (case law), 13/17-20, 13/25

Courts, finding online resources for, 13/17 CPR Institute for Dispute Resolution, 11/13-14, 11/15

Creative solutions, as advantage of mediation,

2/5-6, 12/4

Crimes, reporting of, 2/13, 5/9

Criminal complaints

as factor in choice of mediation, 2/18-19, 12/7 prosecutor programs, 3/12

reluctant party to mediation and, 4/23 Customer complaints, 11/9-10

See also Business mediation

D

Damages, 2/16, 2/17, 7/26 Dates

in opening statement, 6/13-14 for reconvening mediation, 8/3 in written agreement, 7/7

Degree in conflict resolution, 3/27 Demand for arbitration form, 8/11 Discovery proceedings, 2/12 Discussion stage, 6/9, 6/21-26 Dispute types, 2/3-4

best choice of mediation services for, summarized, 3/15

evidence examples for, 5/29-30

See also Business mediation; Divorce mediation;

Employment dispute mediation

Distance mediation, 1/12, 2/18

District attorneys.

agreement not reached in, 10/23 agreement reached in, 10/22-23, 10/24, 10/34 asset concealment and, 10/14, 10/15, 10/33 authority of mediator in, 10/8, 10/25-26 caucuses usually avoided in, 1/14-15, 6/27 children attending, 10/17-18, 10/34 children's best interests, 10/13, 10/16, 10/25 child support, 10/3 choice of mediator, 10/29-32 conditions required for, 10/6-7 confidentiality exceptions in, 10/18-19 contract for mediation, 10/31, 10/32 costs for, 10/4-5 court approval of agreement, 10/22, 10/34 court-sponsored, 3/11, 10/4, 10/5, 10/19-26 dispute resolution clause of agreement, 10/22-23 financial need/disclosure, 10/13-15, 10/33 finding a mediator, 10/29-30 flexibility in, 2/5-6 future as focus of, 10/15, 10/16 goal-setting for, 10/12-15 impressing the mediator, 10/16-17, 10/25-26 issues to be mediated, 10/3, 10/33-34 lawyer review clause of agreement, 10/22 lawyer role in, 10/9-10, 10/26, 10/33, 10/34 legal research, 10/11, 10/12 negotiations, 10/34 physical setting for mediation, 1/11-12 power imbalances and, 2/7 private, 10/4-5, 10/6, 10/24, 10/27-34 property division, 10/3 recommendation of mediator in, 10/8, 10/16, 10/24, 10/25-26

reconciliation of couple during, 10/9 relationship preservation and, 10/6 role of mediator in, 10/8-9 spousal support, 10/3, 10/9, 10/15 stages of mediation, 10/32-34 success and satisfaction rates, 10/6 support persons attending, 10/10, 10/17 threats made during, 10/18-19 time involved, 10/4, 10/6 training and expertise of mediator and, 3/27, 3/28 unmarried couples and, 10/2, 10/20 written agreement for, 10/7

See also Child custody and visitation

Domestic violence

mediation as choice and, 2/7, 2/8 release from mandatory mediation in case of, 10/24

reporting of, 2/13

E

Education. See Training and expertise of mediators

EEOC (Equal Employment Opportunity Commission), 12/10-11, 13/12

Emotions

divorce mediation and, 10/26, 10/34 employment mediation and, 12/12-13 evidence choice and, 6/14 overripe disputes and, 4/5

readiness to mediate and, 4/2-3

Empathic listening, 6/17-18

Employment dispute mediation

agency programs and, 12/10-11

attendees of, 12/13-14

benefits of, 12/2-4

choice of, factors involved in, 12/5-8 confidentiality and, 12/2-3, 12/6 costs of, 12/3, 12/6, 12/9, 12/13 court-sponsored programs and, 12/11 creative solutions possible in, 12/4, 12/17-19 evidence and, 12/15

federal mediation programs and, 3/12 goal-setting and, 5/16

in-house mediation programs and, 12/9-10 lawyer role in, 12/14

legal research and, 12/16

mandatory dispute resolution policies, 12/10 memorandum for, 5/34-35

power imbalances and, 2/7, 5/41 proposal to mediate, timing of, 4/6 relationship preservation and, 12/2, 12/6, 12/12 segttlement options, 12/17-19 selection of mediator, 12/11-13

Employment law, 12/16

Enforcing agreements

of actions not legally required, 7/22

consent judgment form of agreement, 7/24-25 contract form of agreement, 9/10-11 lawsuits for, 9/10-11

lawyer advice on, 7/24

remedies for breach, 7/25-26 reneged agreements, 9/6-11 when not an issue, 7/21-22, 7/25

Equal Employment Opportunity Commission (EEOC), 12/10-11, 13/12

Ethical rules for mediators, 5/8-9, 15/1-8 Ethicity, as factor in mediator selection, 3/23 Evaluative mediation, 3/31-32, 6/22, 11/6, 12/12 Evidence, 5/23-31

avoidance of upsetting with, 6/14 divorce mediation and, 10/11 employment mediation and, 12/15 examples of, 5/24-25, 5/29-30, 6/15 holding back, as strategy, 5/30-31 mediator's opening statements regarding, 6/9 opening statements and display of, 6/14-15 role of, 5/23-25

rules governing, 5/5-6, 5/23 types of, 5/25-28

See also Expert witnesses; Witnesses Exceptions in settlements, 6/32 Expanding the pie, 6/33 Experience level.

Experts

business mediation and, 11/3, 11/16-17 as co-mediator, 3/30

employment mediation and, 12/19 goal-setting consultations with, 5/13-15 hiring of, 3/30

professional courtesy of, overcoming, 5/13-14 Expert witnesses, 5/28

business mediation costs and, 11/3 notification rules for, 5/6, 5/39 subject-matter expertise and, 5/28

Eye contact, 6/11

F

Facilitative mediation, 3/31-32, 11/6, 12/12 Fact-Finding (form of ADR), 1/20

Fairness, 2/5 Fault-finding, lack of

in divorce mediation, 10/15 preservation of relationships and, 2/11

in written agreements, 7/10-11 in written recommendations, 8/4

Fax signatures, 7/28 Federal government

agency programs of, 12/10-11 mediation programs of, 3/12 policies or pledges for mediation as first resort, 11/16

See also Case law; Statutes and regulations Fees. See Costs

Finding a mediator, 3/16-17, 10/29-30, 11/6-7 Flexibility, as advantage of mediation, 2/5-6, 12/4

G

Gender, as factor in mediator selection, 3/23 Goal-setting, 5/10-23

bottom line, establishing, 5/21-23 for divorce mediation, 10/12-15 expert consultations and, 5/13-15 flexibility and, 5/11

potential legal outcomes considered in, 5/12-13 timeline for, 5/15-16

wants vs. needs analysis, 5/17-20 Government. See Cities and counties; Federal government; State governments

H

Harm prevention, litigation and, 2/19, 12/7 Hidden issues, 6/23-24

High-low arbitration, 1/19

I

Impartiality. See Neutrality

Imposed solution. See Authority of mediator Impressing the mediator

in divorce mediation, 10/16-17, 10/25-26 generally, 6/14, 6/16-17

Incompetence of party, 2/18

Independent arbitrators, 8/11

Independent mediators in private practice, 1/9, 3/8-9 business mediation and, 11/6-7 costs for, 1/10, 3/8-9

modifications to agreements and, 9/4-5 physical setting of, 1/11-12 reluctant parties avoided by, 4/9 reneged agreements and, 9/9 rescheduling and, 5/7 selection of, 3/25-26 style and philosophy of, 3/31-34 See also Mediation services

In-house mediation programs, 12/9-10 Initiation of mediation, 4/2-23 in business disputes, 11/12-16 contact by service, 4/18-22 in divorce, 10/27-29

letter to other party, 4/9-12

with mediator or service, 4/13-17 objections to mediations and responses to, 4/20-22

refusal to mediate, responses to, 4/22-23 timing of, 4/6-8, 4/22-23, 10/27 See also Preparation for mediation

Initiator, 4/14

Injunctions, 12/7

Institute for Christian Conciliation, 3/14

Interim agreements, 6/34

Interpreters, 2/18

Interruption, avoiding, 6/11, 6/15, 6/18-19, 6/26 Interviewing mediators, 3/35, 3/36-37

IRS scrutiny of settlements, 12/19

Issues in mediation

hidden, 6/23-24

narrowing of, 6/23

overlooked, 7/3

J

Judges

as independent arbitrators, 8/11

as mediators, skill level of, 3/8, 3/26

Judging, private (form of ADR), 1/21

L

Landlord/tenant dispute sample agreement, 7/13-15 Language

careful use of, 4/14-15, 5/32

for parties to mediation, 4/14

plain English for agreements, 7/4-5

Law coaches, 13/2-8

choice of, considerations for, 13/4-6

costs for, 13/3, 13/4, 13/6

defined, 5/12

divorce mediation and, 10/9-10, 10/26, 10/33, 10/34

employment mediation and, 12/14 holding back evidence strategy and, 5/31 memorandum preparation by, 5/33 on call during mediation, 5/44, 6/39-40 role of, generally, 5/43-44, 13/3 settlement options explored with, 5/44 support for mediation, importance of, 13/5-6 training and expertise of, 13/4, 13/5-6 worth of case estimated by, 5/12, 5/44 See also Lawyer review of agreement Law Firm Policy Statement on Alternatives to

Litigation, 11/15

Law library research, 13/9, 13/14-15, 13/18, 13/19, 13/23-25, 13/26 finding a library, 13/10

Lawyer-arbitrators, 8/11 Lawyer-mediators

bar association listings of, 3/17 bias issues and, 3/33 physical setting of, 1/11 training and skill level of, 3/8, 3/11, 3/26 Lawyer referral services, 13/6 Lawyer review of agreement, 1/15, 5/44 clause in agreement allowing, 5/44 divorce mediation, 10/10 power imbalance and, 2/8

Lawyers

and arbitration, 8/13

cost of mediation compared to fees of, 2/13-14 finding, 13/6-8

law libraries of, 13/10 mini-trials and, 11/19-20 pledge to discuss mediation as choice, 11/15 review of contract for mediation by, 10/32 role in mediation, 1/15-16 selection of, considerations for, 13/4-6 worth of case compared to fees of, 13/2-3 See also Law coaches; Lawyer-arbitrators;

Lawyer-mediators; Lawyer review of agree­ment; Lawyers at mediation; Prosecutors Lawyers at mediation, 1/15-16 background role of, 5/43 divorce mediation and, 10/10 employment mediation and, 12/14 opening statement and, 6/16 reasons against, 5/42 reasons for, 5/42-43 rules regarding, 3/20, 5/42 Leads on a mediator. See Finding a mediator

Leaving the mediation, 2/8, 3/13

Legal encyclopedias, 13/11

Legal precedent, choice of litigation and, 2/15,

2/16, 12/7

Legal remedy.

Legal research

background materials, 13/9-12, 13/16, 13/24 case law, 13/17-20, 13/25 divorce mediation and, 10/11, 10/12 employment mediation and, 12/16 goals of, 13/8 law library, finding, 13/10 mediation and dispute resolution information, 13/25-26

ordinances, statutes, and regulations, 13/13-17, 13/25

specific legal questions, 13/21-24 updating research, 13/14, 13/24-25

Liability, rules of mediation and, 1/13 Liability insurance, 12/14

Library research. See Law library research Listening skills, 6/17-18

Litigation

agreement not reached in mediation and, 8/14 for breach of mediated agreement, 7/25-26 choice of, factors involved in, 2/16-21, 12/6-8 compared to mediation and arbitration, 1/17 confidentiality of mediation and eventual, 2/ 13, 5/9, 5/33, 8/7

confidentiality protective orders and, 5/10 costs of, 2/13-14, 4/23

crime is involved, 2/18-19, 12/7 drawbacks of, 2/2, 2/11, 2/12 employment disputes and, 12/6-8 to enforce mediated agreement, 9/10-11 enforcing awards granted by, 9/11 exposure of case during mediation, 2/9 goals of mediation vs., 1/3 harm prevention and, 2/19, 12/7 jackpot settlement desired, 2/16-17 preparation for, and overripe disputes, 4/4 privacy lost in, 2/12, 2/20 proposal of mediation during, 4/7-8, 4/22-23

refusal to mediate by one party, 2/17-18, 3/10-11, 4/22-23

and rights, vindication of, 2/16 rights to, knowledge of, 2/10 small claims court, 2/19-20 stress of, 2/6

widespread problems and, 12/8 winnable dispute, 2/20, 12/7-8

See also Strategies in case of eventual litigation Location of services, 1/11-12

convenience and, 3/21

M

Mandatory arbitration, 8/11

Mandatory mediation, 1/7-8

authority of mediator in, 2/7, 6/17, 10/25-26 authority to sign-off in, 5/36

as coercive, 2/7

employment disputes and, 12/10 release from program, reasons for, 10/24 reluctant parties to, 4/18

Marital settlement agreement, 10/34

Med/Arb, 1/19, 6/17, 8/8-10

Media and privacy, 2/12, 11/4, 12/2 Mediation

benefits of, 1/3-5

compared to litigation and arbitration, 1/17 defined, 1/3

hybrid forms of, 1/18-19, 6/17, 8/8-10 physical setting of, 1/11-12, 6/6

See also Agreements; Choice of mediation; Dispute types; Initiation of mediation; Mandatory mediation; Preparation for mediation; Rules for mediation; Stages of mediation

Mediation clause

in contracts, 11/13

in written mediation agreements, 7/11-12, 10/22-23

Mediation programs

agency programs, 12/10-11

EEOC, 12/11

federal, 3/12 in-house programs, 12/9-10 professional groups, 3/12

prosecutor programs, 3/12

state, 3/12, 3/16-17, 9/10

trade groups, 3/13

See also Court-connected mediation

Mediation services, 3/4-15 arbitration through, 8/10 contracts specifying particular, 11/13 and dispute types, table summarizing, 3/15 finding, 3/16-17, 10/29-30, 11/6-7 national and regional resources, 16/1-4 payments received by, 7/10 questions to ask in selection process, 3/17-21 reluctant party convinced by, 3/3, 3/9, 3/18, 4/8-9, 4/18-22

reneged agreements and, 9/7-9 satisfaction of clients and, 9/6 selection of mediator within, 3/19, 3/23-25 staff members, 3/25

statewide resources, 17/1-4

submission or intake form, 4/13-17 types of, 1/8-9, 3/4-15 See also Case management

Mediation with a recommendation, 1/18, 8/3-5, 11/19

Mediators

co-mediation teams, 3/22, 3/30, 11/6

control of mediation by, 6/6-7, 6/17-18, 6/21-22 defined, 1/3

ethical rules for, 5/8-9

interviewing and researching, 3/35-37 methods of selecting, 3/22-26 role of, 1/5-6, 6/8, 6/38 style and philosophy of, 3/31-34 See also Authority of mediator; Mediator's proposal; Neutrality; Training and expertise of mediators; Written recommendations

Mediator's proposal, 1/18, 3/32, 11/19 Memorandum, 5/31-35

arbitration following mediation and, 8/10 contents of, 5/33-35

deadline for, 5/6

exchange of, 5/32-33 purpose of, 5/32 rules on, 5/5, 5/6, 5/31-32

submission of, 5/32-33

Memorandum of understanding, 10/34

Memory tricks, and need for written agreement, 7/2-3

Mini-trials (form of ADR), 1/20, 11/19-20 Money requested, 4/16

Multiple parties

business disputes and, 11/3 inclusion of, 4/16-17 length of mediation and, 1/13 mediator experience with, 3/28

N

National and regional mediation organizations and services, 16/1-4

National Association for Community Mediation, 3/5 Needs, analysis of wants vs., 1/6, 5/17-20, 6/19 Negotiation

allowing mediator to negotiate, 6/35-36 changing one's position in, 6/38-39 consulting with outside advisers, 6/39-40 difficulty initiating, 2/15

direct between disputing parties, 4/3 in divorce mediation, 10/34 overwillingness in, 2/9

power imbalance and, 2/7, 2/8 “scapegoating” the mediator in, 6/39 skills lacking, 2/15

as stage of mediation, 6/36-40 Negotiation (form of ADR), 1/20 Neighborhood dispute sample agreement, 7/16-18 Neutrality

behavior of mediator showing, 6/6

bias, 3/33

in-house mediation programs and, 12/10 private conversations jeopardizing, 3/36 as qualification, 3/33-34

written recommendations and, 8/3-4 Night baseball arbitration, 1/19 Nonbinding arbitration, 1/18 Nonbinding mediation, 4/17

Notice of Mediation, 5/7

Notices

deadlines for, 5/6 paper trail for, 5/4-5 rules for sending, 5/4-5

O

On-call advisors, 6/39-40

Online mediation, 1/12

Online resources

CPR Institute for Dispute Resolution, 11/14 EEOC mediation program, 12/11 employment law, 12/16 lawyer information, 13/7

legal research, 13/9, 13/12, 13/16-17, 13/18-19, 13/20, 13/25

Lexis, 13/20

mediator associations, 3/5, 11/7 national listings of mediators, 3/17 Nolo's Legal Research Center, 8/6 Nolo's site for state mandatory mediation information, 10/19

private dispute resolution companies, 3/7 specialized mediation services, 3/14 VersusLaw, 13/19

Westlaw, 13/20

Opening statement by mediator, 6/5-10

Opening statements by parties, 6/10-21 bargaining chips and other openings in, 6/19-21 demands not appropriate, 6/15-16 evidence displayed during, 6/14-15 impressing the mediator, 6/14, 6/16-17 interruptions of, avoiding, 6/11, 6/15, 6/18-19 lawyer's presence for, 6/16 mediator's behavior during, 6/17-18 of other side, tasks during, 6/18-21 speak to the mediator, 6/11 start at the end, 6/12-13 use dates carefully, 6/13-14 wants and needs expressed in, 6/19 witnesses not present for, 6/11, 6/26

Ordinances, 13/13

Organizations, as information source, 13/11, 13/22 Overripe disputes, 4/4-5

Ownership disputes, 11/11-12

See also Business mediation

P

Paper trail, 5/4-5

Partial settlements, 6/34

Parties to the mediation

decision makers, 5/35-36, 12/14 full names used in written agreement, 7/6 language designating, 4/14 others involved in the dispute, 5/36-37 witnesses becoming, 5/40

See also Multiple parties; Reluctance/refusal to mediate

Payment details in written agreement, 7/8-10

Personality of mediator, 3/34

Philosophy. See Style and philosophy of mediator

Photographs, 5/27-28

Pocket part, 13/14, 13/24-25

Power imbalance, 2/7-8

as disadvantage in mediation, 2/7 effects of on mediation process, 5/41 lawyers at mediation to remedy, 5/43, 10/10 rules for mediators in case of, 6/38 strategies for dealing with, 2/8 style of mediator in case of, 3/32-33 support persons and, 2/8, 5/40-41, 5/43, 10/10

Precedents, choice of litigation and, 2/15, 2/16, 12/7

Pre-mediation memorandum. See Memorandum

Preparation for mediation, 5/2-44

Agreement to Mediate, 5/7 business mediation, 11/16 confidentiality concerns, 5/8-10 for divorce mediation, 10/11-17 for employment mediation, 12/13-16

Notice of Mediation, 5/7 notices, sending, 5/4-5, 5/6 power imbalance and, 2/8 rescheduling, 5/6, 5/7 rules of mediation, reviewing, 5/4-6

See also Evidence; Goal-setting; Legal research;

Memorandum; Stages of mediation; Support persons

Privacy

arbitration and preservation of, 8/7 business mediation and, 11/4 litigation and loss of, 2/12, 2/20 mediation and preservation of, 2/5, 2/12-13 small claims court and loss of, 2/29 See also Confidentiality

Private Judging (form of ADR), 1/21 Private mediation companies, 1/9, 3/7-8 arbitration through, 8/10 business mediation and, 11/6-7 costs for, 1/10, 3/8 employment disputes and, 12/11 physical setting of, 1/11 private judging availability, 1/21 reluctant-party contact by, 4/18, 4/22 reneged agreements, 9/9 rescheduling and, 5/7 satisfaction of clients and, 9/6 selection of mediator, 3/19, 3/24-25 training of mediators, 3/8 See also Mediation services

Privilege laws, 2/13, 5/9 Procedures. See Initiation of mediation; Prepara­tion for mediation; Stages of mediation

Professional affiliations, 3/29 Professional courtesy, overcoming, 5/13-14 Professional group mediation programs, 3/13 Professional organizations, as information

source, 13/11

Property division in divorce mediation, 10/3 Proposal, mediator's, 1/18, 3/32, 11/19 Proposing mediation. See Initiation of mediation Proprietary information, protecting, 5/10 Prosecutors

as expert consultants, 5/14-15 mediation programs of, 3/12 returning the dispute to, 8/5-6 Protective orders, 5/10, 12/7 Psychological role of mediation, 1/5 Public libraries. See Law library research Public records, 5/27 Punitive damages, 2/16, 2/17

Q

Qualifications. See Training and expertise of mediators

Question period in mediation, 6/24-25

R

Rank-by-preference method, 3/24-25

Readiness for mediation, determination of, 4/2-5 Reality check provided by mediator, 6/30-31 Recommendations

in divorce mediation, mandatory, 10/8, 10/16, 10/24, 10/25-26

See also Mediator's proposal; Written recom­mendations

Reconvening the mediation, 8/3 Record of agreement, 7/2-3

Records, as evidence, 5/27

Referee, 1/21

References of mediators, checking, 3/21, 3/35-36,

10/31

Regulations. See Statutes and regulations Relationships, preservation of

arbitration as unlikely to preserve, 8/8 business mediation and, 11/4

caucuses avoided in interest of, 6/27

divorce mediation and, 10/6 employment mediation and, 12/2, 12/6, 12/12 as factor in decision to mediate, 2/10-11 and wants vs. needs analysis, 18

Reluctance/refusal to mediate

in divorce, 10/29

as factor in choice of mediation, 2/17-18 litigation as choice in, 2/17-18, 3/10-11, 4/22-23 mediation services to convince, 3/3, 3/9, 3/18,

4/8-9, 4/18-22

reasons and responses to, 4/20-23

Remedies

for breach of mediated agreement, 7/25-26 desired, 4/15

no legal, mediation as choice in case of, 2/9-10, 12/5

See also Enforcing agreements

Rescheduling, 5/6, 5/7

Rescission, 7/26

Research. See Legal research

Respondent, 4/14

Restraining orders, 12/7

Resumes, 3/35

Returning the dispute to the referring source,

8/5-6

Rights

knowledge of, 2/10

vindication of, 2/16

Rules for mediation, 1/12-13, 5/4-6

on confidentiality, 1/12, 5/8

deadlines contained in, 5/6

on evidence, 5/5-6

on intervention for weaker party, 3/32

on lawyers at mediation, 5/42

modifications to mediated agreements and, 9/4, 9/5

on notification requirements, 5/4-5, 5/39 on pre-mediation memorandum, 5/5 on procedures of mediation, 5/5 questions to ask regarding, 3/20 sample rules, 14/1-4

on support persons attending mediation, 5/6

S

Safety

power imbalance and, 2/8

See also Harm prevention

“Scapegoating” the mediator, 6/39, 6/43

Second mediator (co-mediation teams), 3/22, 3/30, 11/6

Secrets. See Confidentiality

Selection of mediator, methods for, 3/22-26

Self-help law books, 13/10-11

Self-help law coaches. See Law coaches

Separation agreement, 10/34

Sequential med/arb, 8/9

Settlement

bottom line, establishment of, 5/21-23 caucuses creating options for, 6/31-34 changing one's position on, 6/42-43 employment mediation options, 12/17-19 IRS scrutiny of, 12/19

mediator's proposal for, 1/18, 3/32, 11/19

rates of successful, 3/28

trial balloons, 6/35-36

unfair, mediator and, 6/38

unworkable, 6/37-38

See also Agreement not reached; Agreements;

Recommendations

Settlement rates, 3/28

Sexual orientation, as factor in mediator

selection, 3/23

Shaking on it, 7/27

Signatures

on agreement, 7/27-28

contract law requiring, 7/24

by phone or fax, 7/28

Skills. See Training and expertise of mediators Small claims court

cases appropriate for, 2/19-20

enforcing reneged agreement in, 9/10-11 as option when agreement not reached, 8/6-7 Specific performance, 7/26 Speed. See Time and Timing Spousal support, 10/3, 10/9, 10/15 Staff mediators, 3/25 Staged agreements, 6/33-34 Stages of mediation, 1/14-15, 6/3-44

closure, 6/40-44

discussion, 6/9, 6/21-26

in divorce, 10/32-34

joint negotiations, 6/36-40

opening statement by mediator, 6/5-10

See also Agreements; Caucuses; Opening statements by parties

Standards of conduct for mediators, 5/8-9, 15/1-8 Starting mediation. See Initiation of mediation State governments

agency mediation programs, 12/10 mediation programs of, 3/12, 9/10 mediation program tracking by, 3/16-17 See also Case law; Statutes and regulations Statewide mediation offices, 17/1-4 Statutes and regulations

citations for, reading of, 13/15

defined, 13/13

finding, 13/14-17

recent legislation, 13/16-17

See also Case law

Strategies in case of eventual litigation confidentiality and, 2/13, 5/9, 5/33, 8/7 evidence brought to mediation, 5/24 evidence held back from mediation, 5/30-31 expert witnesses, 5/39 impressing the mediator, 6/16-17

Stress, mediation as reducing, 2/6

Strike-out method, 3/24, 3/25

Style and philosophy of mediator

in divorce, 10/30

in employment mediation, 12/12-13 generally, 3/31-34

Subject matter expertise

business mediation and, 11/5, 11/7 co-mediation teams and, 3/30 community mediation centers and, 3/23 expert witnesses and, 5/28 and independent mediator as choice, 3/9 interviewing mediators for, 3/29-30 mini-trials and, 11/19

and private mediator as choice, 3/3

See also Training and expertise of mediators

Submission to arbitration form, 8/11

Submitting party, 4/14

Substance abuse, and release from mandatory mediation, 10/24

Success rates, 2/6

Summary judgment, 9/10

Support persons

appropriate behavior of, 5/41 power imbalance and, 2/8, 5/40-41, 5/43, 10/10 rules on, 5/6

See also Lawyers at mediation; Witnesses

Surprises, avoidance of, 4/9

T

Telephone contact

mediation, 1/12

modifications to agreements, 9/5 signatures, 7/28

Threats, making, 10/18-19

Time and timing

asking for mediator's proposal, 11/19 business mediation and, 11/3, 11/19 for divorce mediation, 10/4, 10/6 employment mediation and, 4/6, 12/3, 12/5, 12/7 expected for mediation, 1/13

as factor in choosing mediation, 2/4, 2/14, 12/5 for goal-setting, 5/15-16

limitations on mediation, 1/13

mediator's opening statement on, 6/8

strategic points for proposing mediation, 4/6-8 Toddler needs, 5/20

Trade group mediation programs, 3/13

Trade secrets, protecting, 5/10

Training and expertise of lawyers, 13/4, 13/5-6

Training and expertise of mediators

in business mediation, 11/5-6

community mediation centers and, 3/6 court-connected mediation and, 3/11, 3/12, 10/21 in divorce mediation, 3/27, 3/28

in employment mediation, 12/12 guidelines for assessment of, 3/26-30 of lawyer-mediators, 3/8, 3/11, 3/26 private mediation companies and, 3/8 professional affiliations, 3/29

as question in selection process, 3/18-19, 3/26-28 skill combination needed, 3/3

See also Subject matter expertise

Treatises, 13/11

U

Unmarried couples, 10/2, 10/20

See also Divorce mediation

U.S. Supreme Court cases, 13/19-20

V

Videoconferencing, 1/12

Violence

litigation as choice and, 12/7

mediation as choice and, 2/7, 2/8

Voluntary mediation, 1/7

W

Wants vs. needs analysis, 1/6, 5/17-20, 6/19

Weaker party. See Power imbalance

Websites. See Online resources

Witnesses, 5/37-40

ensuring actual support by, 5/38 live testimony of, 5/27 opening statements not heard by, 6/11, 6/26 preparation of, 5/38-39

procedure in mediation, 5/37, 6/25-26 written statements from, 5/28, 5/38-39, 6/25 See also Expert witnesses

Worth of case

cost of lawyer compared to, 13/2-3 law coach estimating, 5/12, 5/44 legal research to determine, 13/23-24

Written agreements

active participation in, 7/4

arbitration clause in, 7/12-13, 7/26 blame or guilt ommitted from, 7/10-11 compliance with, 7/3 as contract, 4/17, 7/21-24, 9/9-11 court-sponsored mediation, 10/22-23 dates specified in, 7/7 delays in signing, 7/3, 7/27 in divorce, 10/22-23, 10/34 as legally enforceable, 4/17, 7/3, 7/21-26, 9/10-11 mediation clause in, 7/11-12, 10/22-23 names of parties used in, 7/6

payment details specified in, 7/8-9 plain English used in, 7/4-5 provisions listed separately, 7/8 reasons it is necessary, 7/2-3 review, provision for, 7/26-27, 10/22 sample agreements, 7/13-21 signing of, 7/27-28 third-party payments, avoidance of, 7/9-10 who, what, when, where, why explained in, 7/7 See also Agreements; Lawyer review of agreement

Written recommendations by mediator, 1/18, 8/3-5, 11/19

Y

Yellow Pages, 3/17, 13/11, 13/22 ■