Mediation is defined as a process where an impartial person assists others in reaching a resolution of a conflict or dispute. It is the process through which a neutral mediator facilitates communication between disputants to assist them in reaching a mutually acceptable agreement. It is an informal, usually voluntary, confidential, flexible, and non-binding process in which an impartial person called a “mediator” helps the parties to understand the interests of everyone involved, and their practical and legal choices. Nearly every civil case in California be submitted to mediation. Although it is ancient process, many litigants are unfamiliar with the process and are therefore bewildered when mediating for the first time, even when represented by competent counsel. This often leaves them flummoxed and left for words. They might be asking themselves, how should I talk to the mediator? What is appropriate for me to say and abstain from saying? This article provides a concise overview regarding how participants might expect mediators will communicate with them during their mediation.
First, it is important to note that the mediator has a fiduciary duty to act impartially. That means they cannot favor one (1) party over another. For this reason, they abstain from providing legal advice to participants. Further, they typically refrain from intervening when counsel provides legal advice. Providing legal advice could profoundly and negatively impact the mediator’s neutrality. For this reason, mediators rarely discuss the unique legal consequences that could arise in any specific case.
If a party believes a mediator is biased and treating them unfairly, they should state their mind. The mediator must address the participant’s concern. They typically have two (2) options, which are:
- Withdraw and refuse to further mediate with the parties, leaving the parties desperate to find another mediator; or,
- Ask questions and delve into the reasoning behind those feelings of bias to see whether the concerns have any legitimacy and can be alleviated.
Mediator’s typically have four (4) ways of communicating with participant’s. Those are Paternalistic, instrumentalist, informative, and deliberative. These methods are described as follows:
- Paternalistic: The mediator as the parties’ surrogate in assessing what outcome might be best in hopes of guiding the participants to a fair, stress-free settlement;
- Instrumentalist: The mediator simply helps the parties reach their objective of simply settling, and nothing more;
- Informative: The mediator simply acts as the information conduit to relay information, likely because the parties and counsel cannot or can no longer talk directly; and,
- Deliberative: The mediator provides the parties with the same factual information described in the informative model, but also helps the parties understand, articulate, and finally, choose the value that should govern their ultimate choices.
While each approach has its place, the most effective mediators recognize which style best serves the parties’ needs and adapt their communication accordingly to guide participants toward a resolution that is both informed and self-determined.
It is important to note that private ADR, and private mediation, are largely recognized as separate from the Court. That is because mediation is not viewed by all as the practice of law. In fact, the American Bar Association has passed a resolution that unequivocally holds that mediation is not the practice of law. If you litigate your case you will most likely, but not always, mediate with a private mediator who is affiliated with a private mediation company who has no formal or business relationship with the trial court handling your case. Many individuals work as mediators on a full-time basis. Therefore, mediation is widely viewed as its own independent profession, and not part of or corollary to the practice of law or the court system. That is to say, when you mediate privately, you enter another world distinct from the trial court and your legal case.