Comments on: Mediation Confidentiality Collides with Accountability in Court-Ordered Mediation http://businessconflictmanagement.com/blog/2010/06/mediation-confidentiality-collides-with-accountability-in-court-ordered-mediation/ Conflict Management Expertise from F. Peter Phillips Mon, 21 May 2012 22:13:15 +0000 http://wordpress.org/?v=2.7.1 hourly 1 By: Joseph Grynbaum, P.E. http://businessconflictmanagement.com/blog/2010/06/mediation-confidentiality-collides-with-accountability-in-court-ordered-mediation/comment-page-1/#comment-1774 Joseph Grynbaum, P.E. Thu, 01 Jul 2010 20:12:53 +0000 http://businessconflictmanagement.com/blog/?p=616#comment-1774 My experience with court-ordered mediation has been very positive. The Supreme Court of NY in Manhattan runs a well organized and Chief Judge supported ADR program for Commercial cases. My evolved approach with construction type cases has been to do much of the grunt work upfront prior to the mediation session. This includes a scheduling and ground rules phone conference and follow-up conversation(s) with each counsel to clarify the scope of the mediator statement, and obtain a confirmation of who will attend on behalf of each party and their authority level to commit and sign off on the settlement agreement. And last but not least, an understanding between counsel that I will encourage each party principal to participate directly during the mediation session. The objective is to try and assure that there are no disruptive surprises during the mediation, either for me or the parties at the table. My experience with court-ordered mediation has been very positive. The Supreme Court of NY in Manhattan runs a well organized and Chief Judge supported ADR program for Commercial cases.
My evolved approach with construction type cases has been to do much of the grunt work upfront prior to the mediation session. This includes a scheduling and ground rules phone conference and follow-up conversation(s) with each counsel to clarify the scope of the mediator statement, and obtain a confirmation of who will attend on behalf of each party and their authority level to commit and sign off on the settlement agreement. And last but not least, an understanding between counsel that I will encourage each party principal to participate directly during the mediation session.
The objective is to try and assure that there are no disruptive surprises during the mediation, either for me or the parties at the table.

]]> By: Paul S. McDonough http://businessconflictmanagement.com/blog/2010/06/mediation-confidentiality-collides-with-accountability-in-court-ordered-mediation/comment-page-1/#comment-1769 Paul S. McDonough Wed, 30 Jun 2010 22:31:46 +0000 http://businessconflictmanagement.com/blog/?p=616#comment-1769 Ordering parties to mediation is foolish. It only works when both have a good faith interest in seeing if the dispute can be resolved. The problem was not Wells Fargo's, but rather having it be put in a position it was not ready for. As an experienced mediator, it might have been better to wait until later in the proceedings to conduct the mediation. At that point, Wells Fargo might have been prepared to fully participate Ordering parties to mediation is foolish. It only works when both have a good faith interest in seeing if the dispute can be resolved. The problem was not Wells Fargo’s, but rather having it be put in a position it was not ready for. As an experienced mediator, it might have been better to wait until later in the proceedings to conduct the mediation. At that point, Wells Fargo might have been prepared to fully participate

]]> By: Joe Markowitz http://businessconflictmanagement.com/blog/2010/06/mediation-confidentiality-collides-with-accountability-in-court-ordered-mediation/comment-page-1/#comment-1759 Joe Markowitz Tue, 29 Jun 2010 03:39:45 +0000 http://businessconflictmanagement.com/blog/?p=616#comment-1759 I think that if we are going to have court-ordered mediation (which is itself a problematic concept), we could all profit from taking a look at the well-developed body of law in the labor area on the duty to bargain in good faith. Unions have been litigating this issue for many, many years, and seem to have a better idea of what it means than we do in the context of the more recent use of mediation to resolve civil litigation. Whether this case should represent a contemptuous failure to mediate I don't know, but it would probably be good to have a better understanding of what that means before we try to answer that question. Certainly I have seen parties attend mediations here in California without filing a brief, without any intention of budging from their negotiating position, and without even agreeing to listen to the other side. I generally wouldn't consider any of that kind of conduct sanctionable, but then I would also generally be offended if I as a mediator were even asked to testify about what occurred at a mediation. I think that if we are going to have court-ordered mediation (which is itself a problematic concept), we could all profit from taking a look at the well-developed body of law in the labor area on the duty to bargain in good faith. Unions have been litigating this issue for many, many years, and seem to have a better idea of what it means than we do in the context of the more recent use of mediation to resolve civil litigation.

Whether this case should represent a contemptuous failure to mediate I don’t know, but it would probably be good to have a better understanding of what that means before we try to answer that question. Certainly I have seen parties attend mediations here in California without filing a brief, without any intention of budging from their negotiating position, and without even agreeing to listen to the other side. I generally wouldn’t consider any of that kind of conduct sanctionable, but then I would also generally be offended if I as a mediator were even asked to testify about what occurred at a mediation.

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