The format of the following is based on “Hopes for a Lakefront Dreamhome” from the Minnesota ADR Institute 2000. The following was developed by Fred E. Jandt for training programs.
Mr. and Mrs. Frank Father are comfortably retired and live in a luxury mountain area. Their youngest daughter was getting married and they wanted to provide her with a bride’s dream wedding reception. They arranged for lodging and local transportation for the out-of-area guests. They planned on a catered evening meal, decorations, entertainment, and a departing catered breakfast for overnight guests. Expense was not an issue. Both parents had been planning the event with their daughter for months.
Mr. Father arranged for a catering service some 30 miles away to provide the meals. Redlands Catering, while a small concern, was recognized for catering up-scale parties in the area.
The wedding itself was a true dream for the daughter and her parents, but Mr. Father found the reception to be a nightmare. Redlands Catering arrived late to do their set-up. He found their staff rude, abrupt, and obtrusive. The table decorations were not as he had expected them. He had a list of other items that were not has he had expected them. Even more upsetting, Redlands Catering arrived very late for the catered breakfast. So late in fact that some guests left without breakfast.
Mr. Father sued in small claims court for $5,000–a percentage of the total cost of the catering services.
Mr. Father arrived in court alone. Redlands Catering was represented by its owner, Ms. Park, who was accompanied by her husband, Mr. Park. The parties were referred to and accepted mediation.
Assume you are a volunteer mediator with a local dispute resolution center (DRC) receiving funds from the court to coordinate volunteer mediators.
1. As the mediator was walking the parties to the mediation area, Mr. Father asked if the mediator was a “licensed mediator.” The mediator should say:
(a) “Yes, I am licensed by the court.”
(b) “I am appointed by the court to be your mediator.”
(c) “I am a certified mediator.”
(d) Wait until everyone is together at the mediation table before saying anything.
(e) Something else. Specify:
2. As you continue walking to the mediation area you overhear Ms. Park mention to her husband that she had spoken to her attorney, Ms. Susan Boatman. You happen to know Ms. Boatman personally very well. What should you do?
(a) Nothing. Ms. Boatman is not a party to the dispute.
(b) Nothing. There are no other mediators available in the court that day.
(c) Disclose the relationship and give the parties the option of having the mediator continue to serve or getting a new mediator.
(d) Disclose the relationship and refuse to serve regardless of the parties’ wishes.
(e) Something else. Specify:
3. As you sit down in the mediation area, Mr. Park asks how much this is going to cost? At first you think he means how much the dispute will cost. Then you realize he is asking how much the mediation will cost. What should you say?
(a) “Court mediation is provided at no cost.”
(b) “Mediators are not paid.”
(c) “I am a volunteer because I believe in helping people work out their disputes.”
(d) Something else. Specify
4. You thought you recognized Mr. Park and as you are doing your introduction you become convinced that you do recognize him. He is a well-known businessman in the area. Among the properties his family owns is a local amusement center that has been in the news lately for instances of juvenile drinking and gang behavior in its parking lots and for suggestions of other unsavory behavior. Does any of this raise any ethical issues for the mediator?
(a) No.
(b) Yes, the mediator should mention s/he recognizes Mr. Park from the news items.
(c) Yes, if the mediator feels her/his personal feelings about Mr. Park would affect performance as a mediator should resign as mediator.
(d) Something else. Specify:
5. Mr. Park then says that he has had experience with mediation. He said he had one court case where a lawyer mediated and has heard of family court mediation “which went on forever.” He wants to know what kind of mediation this will be. You respond:
(a) Explain that he is not a party to the action and should remain quiet.
(b) State that you are a mediator who will do the best to help the parties resolve the conflict in court.
(c) Explain the difference between substantive and transformative mediation.
(d) Something else: Specify:
6. After you opening, Mr. Father asks if he can take notes. He then asks for your name and contact information. You respond:
(a) Explain that everything in a mediation is confidential and that he can’t take notes.
(b) Discourage him from taking notes.
(c) Give him your first name only and say that you can be reached through the courts.
(d) Give him your full name and DRC contact information.
(e) Explain that a mediator can be called to testify under any circumstances.
(f) Something else. Specify:
7. As the mediation gets under way, Mr. Father begins to get very upset and cry. He says that the caterers destroyed his daughter’s only wedding day. He gets up to leave saying, “How could you do this? I trusted you people. We’ll deal with this in front of the judge.” You get up and physically block him from leaving saying, “Mr. Father, get a hold of yourself and calm down.” This is:
(a) Perfectly fine and consistent with a mediator’s role as manager of the process.
(b) Unethical, because the mediator is not allowing Mr. Father to leave and is therefore coercing him to mediate.
(c) Unethical, because the mediator is repressing, rather than acknowledging Mr. Father’s expression of feeling, which is patronizing and inconsistent with the principle of self-determination.
8. As the mediation continues you conclude that Mr. Father is an insufferable, arrogant, disrespectful cad. You should immediately:
(a) Continue as you normally would.
(b) State that the mediation can no longer continue without telling them why.
(c) Explain that the mediation can no longer continue and explain why.
(d) Continue to serve but inwardly monitor your own reactions to assume that you are not beginning to act partial.
(e) Something else. Explain:
9. During the mediation, a young man who had come to court with the Parks walks into the area to speak to Ms. Park. When Mr. Father notices, he says, “That’s the disrespectful guy she sent to manage the servers. Now you can see why we had such a problem. You know what they’re like.” You:
(a) Ignore Mr. Father’s comment.
(b) Ask Mr. Father what his problem with the young man is.
(c) Explain that a mediation is in progress and that the young man cannot speak to Ms. Park.
(d) Something else: Explain:
10. During a caucus, Ms. Park states in an off-hand way that “We considering taking this business into bankruptcy anyway. We could agree to anything and he won’t get anything back. That would be better than having a judgment against us.” Then she realizes what she said and turns to you. “You can’t tell him what I said, right?”
(a) Assure her that the caucus is confidential.
(b) Explain that what she is suggesting is an illegal action and you cannot assure confidentiality.
(c) Try to persuade her to continue negotiating in good faith.
(d) Wait and see what happens. Then decide.
(e) Something else. Explain:
11. Later in the caucus, Ms. Park says they could see rebating Mr. Father half–$2,500. In a caucus, Mr. Father says he is willing to settle for $2,000. At first you’re pleased because you see that a settlement is possible. They you realize that whoever you ask to make a proposal first will get “stuck.” How do you handle this?
(a) Disclose both offers in public session.
(b) Get permission and then disclose both offers in public session.
(c) Suggest a settlement of $2,250-that way you have been fair.
(d) Ask the defendant to go first.
(e) Something else. Explain:
12. Mr. Father asks for a short break to take a pill. You just happen to glance at his medicine bottle and recognize the name of the drug. It is commonly given to people to deal with very serious depression. What do you do?
(a) Nothing.
(b) Stop the mediation because you honestly feel that Mr. Father is not able to competently make decisions while on that medication.
(c) Discuss the issue with Mr. Father in a caucus.
(d) Something else. Explain:
13. While Mr. Father is getting water to take his pill, Ms. Park says that her attorney told to be sure that any agreement was complete and final and resolved all outstanding issues. She asks if such an agreement would stand up in court if there were any further claims from Mr. Father. You:
(a) Explain that the agreement can be written to say that this resolves all claims.
(b) Ask if she would like to discuss this with Mr. Father.
(c) Refuse to give a legal opinion.
(d) Something else. Explain:
14. When Mr. Father returns, he asks if you will be drafting the agreement. Ms. Park then says that she has discussed with you some language she wants in the agreement. What do you say at that point?
(a) Explain that the discussion you had with Ms. Park was confidential.
(b) Summarize the discussion you had with Ms. Park.
(c) Explain that you do not draft the agreement, you record what they decide.
(d) Explain that the judge has the final say on the wording of any agreement.
(e) Something else: Explain:
15. Mr. Park was so impressed with your skills as a mediator that on the way back into the courtroom, he asks for your business card. He says he often is involved in business deals that require mediation and would like to be able to call upon you. You:
(a) Give him your card.
(b) Refuse to give him your card, but refer him to DRC.
(c) Happen to meet him in the parking lot and give him your card.
(d) Something else. Explain:
16. In the courtroom you recognize that you left something out of the agreement. You did not include details of when the payment was to be made. You expect the judge to include it. S/he doesn’t. What should you do?
(a) Pass a note to the judge by way of the sheriff.
(b) Forget it. It is not your responsibility.
(c) Catch the parties on the way out and raise the issue.
(d) Something else. Explain:
17. Three months later, Mr. Park calls you at home. He explains that he remembered your name and got your telephone number from information. He asks you to refer him to a mediator “just like you” who “can get a solution” and who can help him with a business dispute. He says if you can’t help him personally, maybe you can work under a corporate or association name. His point is that he really wants you. He says he is willing to pay $1000 a day for the mediation. If nothing else, he promises you a $100 referral fee. What do you do?
(a) Take the mediation. It’s been three months.
(b) Refer him to other mediators you know and take the $100.
(c) Say you can’t help him.
(d) Something else. Explain:
18. Another month later, the local sheriff calls you and requests information about anything the Parks may have said in the mediation about their amusement center business. What should you say?
(a) Explain that the mediation was about the catering business and nothing came up about the amusement center.
(b) Refuse to provide any information whatsoever on the basis of confidentiality laws.
(c) Say that you have no recall as to what was said in the mediation.
(d) Something else. Explain:
Conflict Management Coaching Blog by Cinnie Noble“Setting an example is not the main means of influencing others; it is the only means.” ~Albert Einstein It’s not always apparent to the leaders...
By Cinnie NoblePGP Mediation Blog by Phyllis G. Pollack Recently, I read an article posted on the Harvard Law School Program on Negotiation’s website discussing the similarity of improvisation and negotiation. (Improv...
By Phyllis PollackRichard Salem explains how an effective mediator facilitates a mediation and the process used to bring understanding and agreement.
By Richard Salem
