Caldwell & Kearns, P.C.
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Protecting clients in the most complex legal disputes

What can I expect from my mediator, regardless of training, background and style?

In recent posts, we’ve mentioned a variety of factors that need to be considered when selecting a mediator to handle a dispute. These include not only the training and experience of the mediator, but also his or her background, area of specialty, perspectives, biases and unique approach to mediation. Differences in these factors can certainly make a difference in the success of the mediation process, so a careful decision should be made.

No matter what training, background, perspectives or style a mediator has, though, there are certain things that mediators must do in the mediation process. First of all, mediators are required to inform the parties of several matters prior to beginning the mediation. This includes the cost of mediation, the process of mediation, as well as the benefit of obtaining independent legal advice.

Mediators are also required to inform the parties of the mediator’s role, that the mediator does not represent either party and that he or she is required to act as a neutral in the dispute. Any relationships or interests the mediator has which could affect the neutrality of the mediation must also be reviewed. This includes any biases or conflicts of interest. All of this information must be provided in writing.

Mediators are also required to ensure that all communications and documents in the process are kept confidential. This confidentiality must be maintained before, during and after the mediation itself. There are certain exceptions, including communications or conduct in criminal matters which involve the threat of bodily injury, felonious damage to real or personal property, or direct bodily injury to a person. Documents that exist or existed independent of the mediation are also not considered privileged.

An experienced mediator will be able to not only fulfill his or her legal duties to clients, but provide effective facilitation of the mediation process.

Sources:

Title 231, Rules of Civil Procedure: Rule 1940.5—Duties of the Mediator

Title 42, Section 5949: Confidential mediation communications and documents

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