In this edition of “Have you Considered . . .?” we take an in-depth look at the start of the mediation experience. It’s not always true that “the start is the heart” but not knowing when to start or whether you’ve begun can really keep you from reaching your goal.
A useful acronym that mediators sometimes employ to describe the mediation process from start to finish is BADGER. This simple memory tool lets the mediator to keep a close watch on how the mediation is progressing, allowing stage-appropriate interventions to facilitate progress.
BADGER stands for :
“B” – begin the mediation
“A” – accumulate facts and information about the parties and about the dispute
“D” – define the issues/develop an agenda to empower parties to reach resolution
“G” – generate momentum or change in position
“E” – Escape to caucus
“R” – Resolve and wRite up the settlement memorandum for the parties to execute
When does the mediation begin? In Florida, this question is answered by Florida statute. If the mediation is court-ordered, the mediation process starts when the court issues an order directing the parties to mediate. See FL. Stat. 44.404(1). For all other mediations, the mediation begins on the parties agreement to mediate, or, earlier, as required by an agency rule, or agency order. FL Stat. 44.404(2).
The timing question is significant for several reasons. First, it establishes the duration of the mediation. In some contexts, mediation communications may be at issue, for example, when the parties seek to set aside or enforce a mediated agreement. Knowing the time parameters of the mediation — and thus, the extent of the confidentiality provisions that apply to mediation communications — matters. But for today’s discussion of the “beginning”, knowing when the mediation “begins” is important because the mediator’s role and responsibilities don’t begin until the mediation does.
The mediator’s role is to empower and facilitate disputing parties to reach a mutually agreed resolution. Achieving that end requires the parties to trust the mediator and have confidence in the mediator’s ability. Buy-in from the parties is crucial and a mediator gets that from demonstrating mastery of the mediation process. So what’s entailed in “beginning”?
First, an engagement letter directed to all the parties that sets out basic elements of time, place and participants for the upcoming mediation, as well as addressing the issue of fees and who is responsible for payment in what amounts. In addition, the letter should typically open the door for the parties to raise any issues that they feel need to be addressed in advance of the mediation (for example, who should attend and will the party attending have the ability to resolve the matter?). The engagement letter should also provide guidance on whether the parties will submit mediation summaries and provide a timetable for those submissions. My personal preference is to also alert the parties to the fact that I will be in touch just before the mediation with their counsel to confirm that the details are correct and to deal with any pre-mediation matters that should be addressed before the mediation begins.
In a complex case, there may be need for a pre-mediation of certain issues. Are there multiple defendants who may be required to participate in the resolution? Is it clear that all are equally responsible? That one defendant is? Does a dispute about participation levels threaten to take over the basic issue of whether anyone is liable and derail the mediation?
Insurance poses a different layer of complexity and is another classic example of an issue that might benefit from consideration before the mediation session. Assuming the parties can work out their respective positions on liability, will there be multiple insurers disputing whose limits will apply and to what extent?
Another issue that may merit consideration before the mediation begins is the solvency status of any of the parties. In these challenging economic times, filings for protection with the Bankruptcy Court continue to rise. Have any of the parties to this mediation been compelled to file for protection from creditors or reorganization? To what extent will that affect the outcome or potential for resolution?
Should the Beginning include a review of the court file by the mediator? Mediators take different positions on this question. Often, it’s not an option, where the matter is pre-suit or where the matter involves a long-standing court dispute with massive pleadings files. In that case, it’s usually a smarter use of resources to find something that distills the case, such as the motion(s) for summary judgment or a court’s order on a dispositive issue reciting the facts and issues that the case presents. For other types of matters, the court file is all that the mediator may be able to see regarding the case before hearing from the parties themselves.
At last — the parties and counsel arrive. We reach the commencement of the mediation session itself. Again, the mediator’s conduct regarding the “beginning” will set the tone for what’s ahead. For this reason, many mediators choose not to skip the mediator’s opening discussion, even where the parties are “professional participants” such as insurance adjusters, or the parties have litigated before. Whether presented in the opening remarks or otherwise, the mediator has an ethical duty in Florida to orient the parties to the mediation process and its consensual aspect, describe the mediator’s impartiality and role in the process, including the mediator’s inability to impose a resolution on the parties, and speak to the confidential nature of the proceedings.
It is important for the parties, whether frequent participants in mediation or first-timers, to hear the “ground rules” detailing the process. Knowing that the mediator is in control of the process lets the parties relax and listen to the substance of what the other side presents. Being assured of a chance to speak directly to the other side, or to meet privately with the mediator in caucus can drastically improve the parties’ willingness to entertain a change in position.
While deceptively simple, the concept of the “beginning” in a mediation can enhance or derail your mediation experience and chances for success. Something for you to consider…