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THE MEDIATOR’S CREED
ETHICAL CONSIDERATIONS FOR SELECTING A MEDIATOR AND PARTICIPATING IN A MEDIATION
Presented By:Rob EichelbaumDavis Law FirmAdj. Professor
St. Mary’s University School of Law
Defining Mediation
Mediation is a forum in which an impartial
person, the mediator, facilitates
communication between parties to
promote reconciliation, settlement, or
understanding among them.
Tex. Civ. Prac. & Rem. Code §154.023(a)
Who Serves as Mediator?
An impartial third party.
Some Training or Experience.
Trusted and/or Respected by All Parties
Recommended and/or Appointed by the
Court
So You Need a Mediator…Who Do you Select?
Selecting A Mediator
No Opinion
Client Issue
Cost
Other
Previous Use
OutsideReferralReputation
SABA Survey - 2009
Selecting the “Right” Mediator Should be Like
Selecting the “Right” Movie…
Your choice should be based on your particular needs at that time.
WHEN SELECTING A MEDIATORCONSIDER
THE MEDIATOR’S CREED
Communication Skills
Risk Analysis
Experience
Evaluative Standard
Distribution Analysis
Communication Skills
Does the Mediator understand what the parties are saying?
Is the Mediator picking up both verbal and non-verbal cues from the parties?
Is the Mediator overlaying his/her definition concerning “subjective interests”?
OCEAN
Communication Skills
Does the Mediator understand what the parties are saying?
Is the Mediator picking up both verbal and non-verbal cues from the parties?
Is the Mediator overlaying his/her definition concerning “subjective interests”?
Subjective Interests
Love Respect Power Safety Security Control Approval Freedom
Appreciation Independence Self Esteem Acceptance Trust Understanding Consideration Safety
Risk Analysis
Money
Time
Risk
Other
Experience
Subject-Matter Expertise
Mediation Background
“Interpreter” Skills
Respect of the Parties and Party
Advocates
Ability to Deal with High Conflict People /
Highly Charged Emotional Issues
Evaluative Approach
Interest Based Mediation
Rights Based Mediation
Rights Based Mediation
Primary focus is on the Conflict
Mediator tends to be more Evaluative
Mediator spends less time on Party
Relationship
Mediations tend to “wrap up” or go to
“impasse” quicker
Interest Based Mediation
Primary focus is on the Parties
Mediator tends to be more Conciliatory
Mediator spends more time on
Relationship perhaps to the detriment of
the conflict
Mediations tend to extend to multiple
sessions
Evaluative Approach
Interest Based Mediation
Rights Based Mediation
Distribution Analysis
Intensity
Egalitarian Rationality Holistic
Distribution Analysis
The Experiment Leave $100.00 in a
room, but don’t let the other people know it belongs to you.
Announce that you have “found” the money and ask others what to do with it?
Egalitarian Analysis
Will suggest the money be shared by all Divide it Amongst those in the Room Put into a communal pot (Group Snack)
Try to Find a Solution toSatisfy Everyone
Rationality Analysis
Will suggest the money be given to the “Right” Person Finders / Keepers Track Down the Original Owner Most Deserving
Try to Find a Solution Based upon a Logical / Legal
Argument
Holistic Analysis
Will suggest the money go Somewhere Else Give it to Lost and Found Donate it to Charity
Try to Find a Solution to Satisfy A Greater Interest
or Avoid a Solution to Keep Peace
Distribution Analysis
Intensity
Egalitarian Rationality Holistic
WHEN SELECTING A MEDIATORCONSIDER
THE MEDIATOR’S CREED
Communication Skills
Risk Analysis
Experience
Evaluative Standard
Distribution Analysis
WHAT TO DO WITHTHE MEDIATOR’S CREED
Analyze which Skills Best Help You to Resolve the Case
Consider how the Mediator will interact with your client
AND the other parties
HOW DO YOU FIND OUT THE MEDIATOR’S CREED
Previous Experience with the Mediator
Do Your Research•Peer Opinions
•Articles / Organizations
ASK THE MEDIATOR!
WHEN SELECTING A MEDIATORCONSIDER
THE MEDIATOR’S CREED
Communication Skills
Risk Analysis
Experience
Evaluative Standard
Distribution Analysis
Conclusion
Rob Eichelbaum
Davis Law Firm
Tel. (210) 826-7557
