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