Comments: The Preventable Death of Mediation

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Joseph Caulfield, Lyndeborough NH   03/12/13
Being both a trial attorney and mediator, I do not agree that mediation, at least as to a final agreement, as opposed to a temporary agreement, should occur before Discovery is completed. Just the opposite.

Justin , Duluth MN   01/15/13
I cannot agree more with Jeff. I would, however, disagree with Naomi from Beverly Hills. I have one of the most active family mediation practices in Minnesota and my experience is that the best time to introduce mediation in a litigated case is right after temporary orders are issued and right before trial. The temporary order is usually a "reality check" to the parties that they are no longer in charge and the stress and expense of a trial is a good motivator for settlement. Keep in mind that I am interested in settlement, not relationship building (which IMO is best left to professional therapists, not mediators who wish to be therapists). I think that Jeff's position is insightful and true. In Minnesota, our courts have adopted Early Neutral Evaluation for family cases. This has simple created a commodity system wherein everyone takes turns playing evaluator. Parties aren't hiring an evaluator because they trust their judgment, they hire the next evaluator on the list - whoever is "up next".

Naomi , Beverly Hills CA   01/01/13
While this article may be true for mediators whose business involves parties in litigation, this is not true for the family law area and other areas of mediation. While the stages you described are similar in family law mediation, the model is different because the emotional content is much higher. The difference stems from one main point; in civil litigation parties will not likely continue to work closely together whereas in divorce litigation, parties likely have to raise children together. The necessity of continuing an ongoing relationship is a key to the shifts in different directions in the different areas of mediation. When I teach give lectures, I explain that this is because conflict is on a continuum and the longer the conflict drags out the more positional and egotistical each side becomes. The early you "catch" the conflict, the more likely it is to resolve it through mediation. The courts have done an injustice to mediators and the mediation process by introducing mediation after discovery. Mediation should be mandatory immediately upon filing; pre-discovery. If this were the case, the legal posturing and discovery excavations in session would be avoided.

Jan , Encino Ca   12/31/12
Jeff: thanks for causing us to take a look inward in our autumn years. It's a great way to end the year and continue to grow and transform. I think as the courts pull back from supporting free or low cost mediation by virtue of budget constraints, the marketplace will inevitably dictate our future utility.

Kevin Forrester, Encinitas CA  kforrester@psmkr.com     12/28/12
Jeffrey, the court-ordered system may eliminate itself when the Judicial Branch decides that criminal cases are all that it can handle. Perhaps litigators and their clients will take the alternative dispute resolution system seriously when it is the only system they have. Kevin