Practice Tip:
The Importance of Mediation Guidelines
By Brenda Sutton & Selinda D. Handsford

Imagine that you have just completed a mediation and thought all the basics were covered pursuant to your mediation guidelines. You later learn that one of the attorneys has subpoenaed you to testify in court about what occurred during the mediation. You believe that your guidelines provided you protection from having to appear. In afterthought, you are not certain whether your guidelines were clear and concise enough to withstand scrutiny. How can you avoid that kind of anxiety and have confidence in your guidelines?

Mediation guidelines establish the procedures that govern the mediation process. They shield mediators and ADR programs from challenges to the people and the process that could result from unhappy outcomes. They provide the structure and set the stage for successful mediations. They are, in a word, critical.

Unfortunately, some mediators just don’t get it. They consider drafting, explaining and getting signatures on mediation guidelines to be dubious, unimportant, time-consuming tasks that they have to endure before they do the REAL work. However, the importance of guidelines as an integral component of the mediation process can NEVER be overstated. Below are the three most important ways in which clear and concise mediation guidelines can protect mediators and benefit participants.

Well-written, clearly presented, and signed mediation guidelines do the following:

Establish the rules that govern the mediation process. Mediation guidelines establish parameters that must be followed to prevent any potential issues that could arise during or after the mediation process. Guidelines set forth the roles and responsibilities of the mediator and the parties and their attorneys. The guidelines inform the parties that the mediation process is voluntary and that the parties and the mediator are empowered to end the mediation at any given time. The guidelines also highlight the mediator’s aim to be and remain neutral, which keeps the process balanced and moving smoothly.

Secure confidentiality for all parties. Confidentiality sets an open environment for information sharing and allows the parties to freely discuss any and all issues pending in their cases. It is important for a mediator to gather as much information as possible from the parties to help them negotiate effectively, to offer them reality testing, and to help them strategically maneuver through the mediation process. Confidentiality fuels trust and rapport between the mediator and the participants, thus helping the mediator help the parties reach agreement.

Provide indemnity for the mediator. When parties are dissatisfied with a mediation, they often blame the mediator, the ADR program, or the attorney. Parties will sometimes sue the mediator, file ethics complaints against the mediator, subpoena the mediator to appear in court, or seek to have the mediated agreement thrown out altogether. Mediators can survive these challenges by ensuring that their guidelines are clear and complete and that the participants understand and agree in writing to those guidelines. Local and state mediation rules provide liability protection for mediators, but it is also incumbent upon mediators to ensure that their mediation guidelines conform to the requirements in those rules. Mediators may not be entitled to immunity under the mediation rules if they did not do their job correctly.

Poorly written mediation guidelines are a disservice to the parties, to the mediation process and to the mediator. Mediators should make it a habit to periodically review and update their guidelines to ensure that they cover all of the issues that could arise during and after mediation. Mediators should make sure that ALL participants sign and date the guidelines PRIOR TO any discussion of the issues. The mediator’s failure to do so could result in disaster for the parties and an ethics violation for the mediator, the ADR program, or both. Program directors depend on mediators to ensure that their guidelines are in compliance with state and local rules. When used effectively, mediation guidelines will benefit the mediation process, the participants, and the mediator.
 

Brenda Sutton	Brenda Sutton, MA, is director of the Houston & Macon Judicial Circuits ADR Program.
Selinda D. Handsford	Selinda D. Handsford, Esq., is an attorney and mediator with Handsford Law, P.C. in Macon.