While the parties control the outcome of a mediation, the mediator manages the process from which the outcome flows. The preceding post mentioned the fact that a mediator is obligated to conduct a quality mediation and protect the “quality of the process”. What does that mean? Is a quality process simply good coffee and donuts? While good coffee and donuts may very well be desirable, the concept of a quality process is far more than a palate pleasing environment.
The Model Standards of Conduct for Mediators (“Model Standards”) addresses the issue of the quality of the process in Model Standard VI. This particular standard is lengthy which in my opinion emphasizes the importance of the quality of the process in mediation. This post will not attempt to address each subpart of Model Standard VI but rather will address several important concepts that are the cornerstone of quality.
The most important concept to a quality mediation process involves procedural fairness, participation by the parties and mutual respect. The mediation process is about the parties, not the lawyers or the mediator, and the parties should be allowed to have their voices heard in a fair, respectful manner. Many times that requires that ground rules be established at the start that everyone will have an opportunity to speak, uninterrupted by others. Providing a quality process also obligates the mediator to promote honesty and candor between all that are participating and a mediator must not knowingly misrepresent any material fact or circumstance during the mediation.
The concept of timeliness, diligence and presence of the appropriate participants is also important to the quality of the process. Mediation is a form of alternative dipsute resolution and one of the overall goals is to provide a process that can happen in a timely and efficient manner. The mediator must be able to meet the parties expectations as to timing of the mediation and be prepared to devote the time and attention essential to an effective mediation. In short, the mediator should not accept a mediation that will likely last all day when he/she only has a half day available and let his/her ego drive the belief that it can get resolved in a half day.
Having the appropriate participants physically present at the mediation is one of my personal pet peeves. It is so important to the process for an individual to be present. Mediations take on a life of their own and it is impossible to explain to someone on the telephone all of the nuances of what is transpiring. Yet, to save money, most insurance companies do not send a representative to be physically present except in rare cases. As a mediator in the private sector all that I can do is emphasize the importance of physical presence. Judges can order participants with decision making authority to be present. I cannot.
Finally, the mediation process must be safe and ensure that if any of the parties have competency issues that those issues are addressed through appropriate accommodations or other adjustments. Consistent with the preceding paragraph, if any party is having difficulty comprehending or participating in the mediation, procedural fairness requires accommodation to allow that party to exercise their self-determination in the ultimate outcome.