Review Paperwork

Begin your preparation by carefully reading the rules that will govern your mediation. Most mediators or mediation services will give you a set of written mediation rules. You may also receive a “Notice of Mediation” and an “Agreement to Mediate.”

1.

Many mediators and mediation services will send you a set of rules when you schedule your mediation. If you have not yet received a set of rules, call and request one.

Mediation rules cover things like when and how fees are to be paid, procedures to be followed during the mediation, and the degree to which the mediation proceeding will be considered and kept confiden­tial. Fortunately, mediation rules are usually just a few pages long and are almost always written in plain English. (Sample Mediation Rules appear in Appendix A.)

Because mediation rules don’t vary much from place to place, chances are good that yours will cover the following points:

• Sending Notices. If you need to inform the mediator or the other party of something—for example, that you plan to bring someone to the mediation who has special expertise—the rules may tell you how to do so. For example, can you call on the telephone or send an email, or do you have to send a fax or letter? Can you send the letter by regular mail, or must it be certified? Do you have to send copies to the other party?

QLeave a paper trail for important messages. If the rules do not tell you how to send an important notice to the mediator or the other party, play it safe and put the notice in writing. For example, if you use the telephone or email, be sure to follow up with a fax or letter. This will give you written proof that you sent the notice.

• Pre-Mediation Memorandum. This is a written statement you prepare for the mediator, explaining your version of the facts and issues in­volved in your dispute.

• Mediation Procedures. The rules will probably explain how the media­tion will be conducted. Will the mediator hold only joint sessions where everyone meets together, or will the mediator also have separate meetings with each party (called “private caucuses”)? Caucuses are common in business mediation, but less frequent in divorce and family mediation. (For more on caucuses, see Chapter 6, Section D.) Knowing whether caucuses will be used can help you plan your strategy. For example, if you have an idea of how your dispute could be settled, you might want to try it out on the media­tor during private caucus before telling the other party at a joint session. But if you know you won’t be having caucuses, then you will have to think about how and when to present the idea to the other side directly.

• Evidence Rules. Strict courtroom rules that limit the types of evidence you can use don’t apply in mediation. This makes sense—after all, the mediator is not a judge but simply a person trying to help you reach an agreement. Nevertheless, because parties sometimes want to offer testimony from witnesses, or present or refer to documents or other written reports (lawyers call these “exhibits”), mediation rules typically address this issue. Some leave it up to the mediator to decide what sort of outside information is and is not appropriate, while others set more definite rules. (For more on different types of evidence, see Section C, below.)

• Bringing a Lawyer, Law Coach, or Friend. It’s unusual to bring lawyers to mediations involving small consumer disputes and interpersonal matters, but more common to have a lawyer involved in business disputes and cases involving complex legal issues.

• Deadlines. Most mediation rules include deadlines for doing certain things, such as:

✓ submitting a written memorandum to the mediator prior to the mediation; often, the memorandum will be due at the mediator’s office a week or two before the mediation

✓ rescheduling or canceling the mediation without a fee—mediation services may charge a fairly steep fee to cancel or reschedule on only one or two day’s notice (the amount they charge will depend on how high their regular fees are), and

✓ notifying the other side if you plan to bring an expert witness, such as a physician or accident investigator, to your mediation session; this deadline is usually a couple of weeks before the mediation, to give the other side time to find its own expert.

2. Other Paperwork

After your mediation has been scheduled, the mediator or mediation service will probably send you a document called a “Notice of Mediation” (sometimes “Hearing Notice”) confirming the date, time, and place of your mediation. Be sure these details are as you agreed. If you did not set a date, make sure that the assigned date is convenient for you; if the date won't work, contact the mediator or service right away to reschedule.

? Reschedule the mediation, if necessary. Typically, a mediation

service will schedule your mediation within a few weeks or a month after a mediator has been selected. Unlike in court, where scheduling is at the convenience of the judge and civil servants, your mediation can be scheduled at the convenience of the parties and the mediator. Don't be afraid to ask to reschedule, especially if you are using an independent mediator or private dispute resolution company, who will want to treat you well as a customer. If the other party's schedule permits, your request will probably be accommodated.

You may also receive and be asked to sign an “Agreement to Medi­ate.” The purpose of the agreement is simply to commit the parties in writing to mediate their case in good faith, to follow the rules, and to pay the fees. Check it carefully to make sure your name is spelled correctly, your dispute is accurately described, and the mediator as­signed is one whom you have agreed to use (if you were permitted to select). Also, be sure the fees are as you agreed.

3. Confidentiality Protections

During a mediation, you may want to make deeply personal statements or share confidential information. For example, if you’re a business owner mediating a claim of sexual harassment with a former employee, you might be tempted to share information about exciting new products the company is about to introduce, to encourage the person to settle and take a new job with your company. Or in a case in which you and a business partner are trying to rebuild trust and save the company, you may be called on to acknowledge your own past mishandling of com­pany finances or business opportunities. (Disclosing secrets can be an especially relevant issue in divorce cases. For more on confidentiality in divorce and family mediation, see Chapter 10.)

Confidentiality is essential to a successful mediation. Without it, many people would sensibly not agree to mediate (and certainly would not want to confide in the mediator). Accordingly, as the practice of mediation has grown, so too have the legal and ethical protections designed to make mediation as confidential as possible. These protec­tions include:

• Mediation Rules. Most mediation rules require the mediator and the parties to keep private everything said during the session. These rules often provide that if the case ends up in court, neither party may call the mediator to testify about what was said in the media­tion. Unfortunately, the consequences of breaking these rules— particularly by the disputants themselves—are not entirely clear.

• Ethical Rules for Mediators. Most mediators voluntarily follow ethical rules, which usually require the mediator to maintain confidential­ity. (See “Standards of Conduct for Mediators,” in Appendix B.)

Some states have laws or court cases addressing confidentiality as well. However, because mediation is not a licensed profession, there are few professional sanctions for violating these ethics.

• Privilege Laws. Many states prohibit mediators from testifying in court (or in an arbitration) about what was said in mediation. But these so-called “privilege laws” vary greatly in terms of what they cover, and some apply only to mediators working in specific types of programs (for example, nonprofit mediation centers).

• Evidentiary Rules. Federal Rule of Evidence 408 and comparable laws in most states make settlement offers, responses to them, and general settlement discussions confidential, whether they occur in or outside mediation. These statements cannot be presented in court (or arbitration) to prove the validity or value of a claim. These laws have generally been interpreted to exclude much of what is said in mediation from later court or arbitration proceedings.

EXAMPLE: Jim broke his back and leg when he fell on a rotted stair at a restau­rant. Jim and the insurance company for the restaurant went to mediation. During mediation, Jim offered to settle if the insurance company would pay him $40,000for his injuries, but the insurance company refused and the mediation ended without a settlement. Now, Jim is suing the insurance company and asking a jury to award him $100,000. Under a state law that is comparable to Federal Evidence Rule 408, the insurance company may not tell the jury that Jim was willing to settle for less than half that amount in mediation.

0Some mediators have a duty to report criminal activity.

PROTECTIVE ORDERS

In some cases, you may need to get an order from the court to protect trade secrets or other confidential business information that is critical to your mediation. This usually comes up only if you already have a court case going and your case involves proprietary information that you want to keep private (so business competitors don't get hold of it), but the information absolutely must be revealed and discussed in order for the mediation to be effective. In this situation, you can agree in advance that information you share during the mediation will be subject to a court order of confidentiality, and that there will be penalties for disclosing it outside of mediation. You can then submit the agreement to the judge where your lawsuit is pending. After the judge signs the protective order, everyone involved in the mediation will be legally required to maintain the confidentiality of the information covered by the order.

So how confidential is mediation? From a practical viewpoint, confidentiality is not usually much of a problem in mediation. Generally, you can safely rely on most mediators to keep quiet about your session(s). But if someone else—such as the other party—decides to disclose what is said in a mediation, there’s very little you can do about it. The bottom line is this: If you have a secret that you really don’t want known, get a binding protective order or don’t reveal the information in mediation. If you have particular concerns about confidentiality, discuss them with the case manager at the mediation service or the independent mediator.

B.