The success of a mediation often depends on the mediator and his or her ability to bring the parties together and help them bridge the gap between their different positions. When selecting a mediator the parties should consider, among other things, the mediator’s style, the mediator’s subject matter expertise, and the mediator’s training and experience.
A mediator’s style is often classified as either facilitative or evaluative. Those of a facilitative style focus on fostering communications between the parties and refrain from evaluating each party’s position. On the other hand those mediators who employ an evaluative approach share their opinion as to the strengths and weaknesses of each party’s position. Often a successful mediation requires the mediator to employ both approaches, frequently starting with a facilitative approach to promote communication and then employing the evaluative approach to ultimately bridge the final gap between the parties positions.
The parties should also consider the mediator’s expertise as to the subject matter in issue. If the mediator does not have subject matter expertise the mediation may take longer in order to provide the mediator with the requisite knowledge to effectively perform his or her task. Subject matter expertise is particularly important if the parties believe an evaluative approach is needed to achieve a resolution.
The parties should also consider the mediator’s training and expertise because, like in some many other things, in reaching a successful mediation, there is often no substitute for knowledge and experience.
Donald C. Turner
The mediator is a critical component to a successful mediation and the parties are therefore well advised to carefully consider who should serve as the mediator.
Donald C. Turner is a partner in the Pennsylvania law firm of Unruh Turner Burke & Frees, PC with offices in West Chester, Malvern, and Phoenixville, PA. For more information on how Donald C. Turner could assist you as an independent mediator, contact Donald C. Turner in our West Chester office.
One of the keys to a successful mediation is knowing when it is time to mediate. Starting a mediation prematurely is unlikely to lead to a resolution and often makes the parties disinclined to try mediation at a later point when it might very well be successful.
So what is the optimal time to start the mediation? It is not an easy question to answer but one thing is clear: a mediation is highly unlikely to lead to resolution if it occurs before all parties have all the relevant information. This is so because the parties simply can not evaluate whether a proposed settlement is warranted before all the relevant information is at their disposal. As a result in the litigation context, most mediations should not commence before all relevant discovery has been completed. Oftentimes impending deadlines provide a fruitful time to start a mediation. This is why so many mediations are successful when conducted on the verge of trial. At that point the parties are often times more inclined to compromise in order to avoid the uncertainty and expense of trial.
In summary don’t start a mediation before all parties have all required information at their disposal and once they do consider what deadlines might be used to facilitate compromise.
Donald C. Turner
Donald C. Turner is a partner in the Pennsylvania law firm of Unruh Turner Burke & Frees, PC with offices in West Chester, Malvern, and Phoenixville, PA. For more information on how Donald C. Turner could assist you as an independent mediator, contact Donald C. Turner in our West Chester office.
Mediation is a great tool to resolve estate or real estate matters involving family members. To find out more about mediation call David M. Frees III for more information.
David Frees
David is a partner in the Pennsylvania law firm of Unruh Turner Burke & Frees, PC with offices in West Chester, Malvern, and Phoenixville, PA. For more information on how David M. Frees could assist you as an independent mediator, contact David Frees in our Phoenixville office.
With the future of a $9 billion revenue stream at state, NFL owners and players have turned to mediation for help in finding common ground. Representatives of the two sides met with Mediator George Cohen for 8 hours on March 1 at the Federal Mediation and Conciliation Service in Washington, D.C. After 9 months of infrequent and contentious bargaining sessions, the bargaining teams are now meeting face-to-face in an effort to stave off a player lockout and its dire financial consequences – to players and owners alike. The Collective Bargaining Agreement was scheduled to expire on March 3, but the parties have agreed to extend the agreement to give mediation a chance to work. High stakes indeed — football fans are holding their collective breath! For more on the NFL mediation see the full article here.
Stephen Lagoy
Steve Lagoy is a partner in the Pennsylvania law firm of Unruh Turner Burke & Frees, PC with offices in West Chester, Malvern, and Phoenixville, PA. For more information on how Steve Lagoy could assist you as an independent mediator, contact Steve Lagoy in our West Chester office.
In the face of the rising tide of mortgage foreclosures, mediation programs in three Ohio counties are having very positive results. Foreclosure mediation initiatives in Warren, Greene and Montgomery Counties differ in the processes by which services are provided. However, they are all court-related and they share a common result – successful foreclosure avoidance. The programs focus on initiating and facilitating communication between borrowers and lenders. That factor is pointed to by participants as key to the programs’ successes. To read more about the Ohio experience, see:
Steve Lagoy is a partner in the Pennsylvania law firm of Unruh Turner Burke & Frees, PC with offices in West Chester, Malvern, and Phoenixville, PA. For more information on how Steve Lagoy could assist you as an independent third party foreclosure mediator, contact Steve Lagoy in our West Chester office.
Pennsylvania’s Mediation Statute protects from the discovery process, communications occurring during mediation, and also documents that are created during mediation. A few limited exceptions to confidentiality are identified in the Statute, which exceptions apply in circumstances where there are:
Later legal proceedings to enforce a mediation agreement
Felonious threats of bodily harm or damage to real or personal property
Fraudulent communications relevant in an action to enforce or set aside a mediation agreement
Documents that exist independent of a mediation
Unless one of the above exceptions is present, the protection afforded mediation communications and documents, is generally regarded as sacred within Pennsylvania’s state court system.
Mediation confidentiality is less clear within the federal court system. Some federal districts observe a federal mediation privilege by applying Federal Rule of Evidence 501, while others do not. The Third Circuit has not addressed the question of a federal mediation privilege. The ADR Act of 1998, mandated district courts offer at least one ADR option, and promulgate local rules addressing the confidentiality of the ADR process. As an example, the Western District of Pennsylvania crafted a local rule that provided for a presumption of confidentiality, but permitted the use of a balancing test to determine whether, in any given circumstance, the benefits of preserving confidentiality were outweighed by the benefits of requiring disclosure. In Gatto v. Verizon Pennsylvania, Inc. the use of such a balancing test resulted in a mediator being subpoenaed to testify. Following Gatto, the local rules for the Western District were amended to provide greater confidentiality protections.
Confidentiality is an essential component of mediation. Mediators must therefore be always mindful of confidentiality issues, and be ever vigilant to protect and preserve the confidentiality of the mediation process.
Nancy Glidden
Nancy Glidden is an attorney at Unruh, Turner, Burke and Frees, Nancy practices in the areas of Pennsylvania mediation and arbitration. The firm maintains law offices in Malvern, Phoenixville, and West Chester Pennsylvania which serve the Main Line, and many surrounding communities such as Devon, Exton, West Chester, Ardmore and others.
A judge in Bonner County, Idaho has appointed a mediator to attempt to resolve a first-degree murder case. Unbelievable? The judge’s action was in response to a joint motion made by the County Prosecutor and the defendant’s attorney. The mediator will be paid with public funds. The case involves a theft-related shooting death near Coolin, Idaho in January, 2007. The victim died of a .22-caliber gunshot wound to the face. The defendant and his former wife fled the region after the shooting and were tracked to Fort Myers Beach, Fla. They were arrested several months after the slaying and were charged with first-degree murder and grand theft by possession of stolen property. The latter offense stemmed from a $56,000 escrow check that belonged to the victim. The ex-wife has pleaded guilty to second degree murder. If the mediation is not successful, an eight-day trial is anticipated.
Watch attorney Steve Lagoy, a professionally trained mediator, as he explains some of the benefits to business of the mediation process.
Why is mediation helpful? Mediation is both cost efficient and a time saver for all the parties involved in a dispute. With both parties setting the terms of the mediation as opposed to the Court, the disputing parties can determine where and when the mediation will take place. Mediation can also preserve already established business relationships, whereas those relationships are often irreparable when a case is decided in a jury trial.
What are the qualities of a good mediator? A good mediator listens intently, understands human nature, and withholds evaluative judgment. A good mediator lets the mediation process unfold. A good mediator is patient.
For more information on how mediation can help you to resolve a family, business or other conflict, call Stephen Lagoy at 610-692-1371 or contact him at slagoy@utbf.com.
The Texas Rangers own the longest winning streak in the major leagues this year (eleven) and currently have a healthy lead in the American League’s West Division. Success on the field has not translated to financial bliss, however. The Rangers’ present ownership filed for Bankruptcy in May to complete a sale of the club to a group headed by Rangers’ president and Hall of Fame pitcher, Nolan Ryan. Now, the proposed sale has been postponed by Bankruptcy Judge D. Michael Lynn who has ordered the parties to continue mediation to try to resolve opposition to the proposed sale by creditors who lent $525 million to the present ownership. Given baseball’s July 31 trade deadline, the postponement could impact the Rangers’ ability to acquire players from other teams for an anticipated pennant run.
For more on the role mediation will play in the Rangers’ bankruptcy, see the article from Bloomsberg Business Week.
Thank you for visiting our blog, make sure to add our rss feed (located below) to your favorite news reader. If you have a question about this area of the law, please drop us an email, we might even post your answer on this blog.
The success of a mediation often depends on the mediator and his or her ability to bring the parties together and help them bridge the gap between their different positions. When selecting a mediator the parties should consider, among other things, the mediator’s style, the mediator’s subject matter expertise, and the mediator’s training and experience.
One of the keys to a successful mediation is knowing when it is time to mediate. Starting a mediation prematurely is unlikely to lead to a resolution and often makes the parties disinclined to try mediation at a later point when it might very well be successful.
