What’s the Mediation? A confidential process

What’s the Mediation? A confidential process

The basic definition of mediation is that the third party neutral (the Mediator) discusses the dispute with the parties to facilitate an agreement between the parties to resolve the dispute. Whatever is discussed at the mediation, is confidential. If an agreement is reached, it should be in writing.

So, we can say that Mediation is a confidential process. Virtually all the different court-annexed mediation programs and provider organizations contains rules providing for confidentiality. The only mediation statute in New York State providing for confidentiality is afforded to mediations as the community dispute resolutions centers.

Maintaing confidentiality encourages the parties to freely speak out, and say what they mean and what they want. The mediation session is considered the equivalent of a settlement discussion; thus, whatever is said or admitted or provided at the mediation, cannot be used as evidence in a court or other administrative proceeding, and is thus inadmissible.

The other side would then provide its explanation of the dispute and why it believes it is right, and what is important. This is usually done by the attorney and the client. Again, the attorneys try to encourage the client to speak and provide explanations. It is crucial that there be a rapresentative present in person on behalf of each client who has full settlement authority. Mediation without a client ends up being a meaningless meeting and very little gets accomplished.

By having the parties present during the mediation, the parties obtain a better understanding of the other parties’ interests and positions; they can determine for themselves whether there is true sicerity. They may not necessarily agree with the other side, but at least they will have a better understanding between the parties is very valutable, particularly if they are going to have continuing business relationships.

The pro se plaintiff or defendant in a complicated litigation in court is at a tremendous disadvantage. Even, though mediation is more informal, if the dispute involves a major or complicated dispute, the pro se person is likewise at a major disadvantage. Thus, the mediator should encourage the pro se person to obtain legal representation.

Why mediation works after negotiation fail

The experience shows that mediation works after negotiation fail. What’s the reason?

Certainly, mediation permit each party (and his or her attorney) to communicate directly to the other party. Other reason is that a mediator can let the parties vent their feelings, put emotion behind them, focus on their real needs and interests and then make a rational cost/benefit and risk/reward analysis of the difference between litigating and settling.

So, a mediator can be an “agent of reality” to help the parties and their advocates overcome “advocacy bias” and other cognitive barriers to objective risk analysis. There are three features:

  1. Advocates may have advocacy bias, confirmatory bias and a tendency to fall in love with their arguments, and parties have a tendency to believe what they want to believe;

  2. A mediator has more credibility than the opposing party in pointing out the weaknesses in each party’s case so as to assist each party in making an objective risk/ reward and cost/benefit analysis of its litigation alternative;

  3. A mediator can help the parties focus on their tolerance for or aversion to risk.

A mediator has a different agenda from the parties. A party’s agenda may be to get as much as possible in a zero sum negotiation or to win, get even, be vindicated or satisfy a similar noneconomic need. The mediator’s sole agenda is to assist each party in finding a way to settle on terms that meet its real needs and interests and are preferable to its litigation alternative.

Furthemore, a mediator can suggest ways to enlarge the pie (non monetary benefits that cost one partyless than the value of that benefit to the other, the difference being the added value). For example. When the mediator suggests a method for adding value to each party in a separate confidential caucuse, that may enhanceits perceived value to each party, whereas if one party suggests a method of creating added value to the other by offering to give the buyer a discount on future orders, the buyer may feel entitled to keep all of the addedvalue because the fact that the seller suggested the discount may be perceived by the buyer as a benefit primarily to the seller who suggested it, thus causing the buyer to expect more than a fair share of the added value.

Other important feature of Mediation is that communicating directly to the other party or party rapresentative that has the major stake in the outcome can minimize the risk of a conflict of interest between that party and its negotiating representative.

We have to consider that litigators may have financial or ego needs that may, consciously or subconsciously, cause them to overvalue the strenghts of their case and thus prefer to focus on the advantage of winning in litigation over a settlement that would avoid the risk of losing. A party’s negotiating agent may have a different need from its principal or employer.

So, another feauture of mediation is that the proposal suggested by a mediator may avoid a knee-jerk negative reaction, which might have been the reaction if the other party made the same proposal.

Indeed, when made by the mediator rather that one’s adversary, the proposal is more likely to be considered and evaluated rather than suspected or attacked. If one party makes a final “take it or leave it” proposal to the other, the other may not be willing to accept an ultimatum from its adversary, whereas if a respected mediator makes a proposal that he or she believes is better for both parties than their litigation alternative, it is more likely to be accepted by both parties.

By making a mediator’s proposal as a last resort to avoid impasse, the mediator can overcome the posturing that negotiators often use in an attempt to settle on therms that are better than their worst-case alternative to litigation.

Because each party knows that, if it accepts the mediator’s proposal, the mediator will not reveal its acceptance to the other party also accepts the proposal, there is no downside in accepting yhe proposal as long as it is at least somewhat better than its worst case alternative to litigation.

One definition of a good settlement is when both parties are equally unhappy. Agreeing to a less than ideal settlement may be better than the uncertain or role the dice litigation or arbitration alternative.

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Avv. Teresa Rullo

Iscritta all'albo degli Avvocati da febbraio 2016. Laureata in giurisprudenza nel marzo 2012 presso l'Università degli Studi di Napoli Federico II, discutendo una tesi in diritto amministrativo dal titolo "La Conferenza dei Servizi", relatore Prof. Fiorenzo Liguori. Subito dopo la laurea, nel 2012, ha iniziato la pratica forense presso uno studio legale specializzato in diritto civile. Nel dicembre 2013 ha iniziato a collaborare con un altro studio legale multidisciplinare di medie dimensioni occupandosi, prevalentemente, del contenzioso civile. negli anni 2015 e 2016 ha seguito il Corso di Perfezionamento in Alti Studi Politici presso l'Università Suor Orsola Benincasa di Napoli, conseguendo l'attestato finale. Attualmente svolge autonomamente la professione di Avvocato e collabora saltuariamente con uno studio legale operante sia nel settore civile che penale.

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