I blew out my knee twice playing college football  As a consequence I have more than a passing familiarity of the anatomy of the human knee. Does that knowledge of the knee’s anatomy mean that I am competent to perform knee surgery? The answer is obvious and despite my personal familiarity with the anatomy of the knee you do not want me operating on your knee. Similarly, mediator competence needs to be viewed as more…

It is likely no coincidence that self-determination is listed as the first standard in the Model Standards of Conduct for Mediators (“the Model Standards”). The Model Standards were designed to “…serve as fundamental ethical guidelines for persons mediating in all practice contexts.” Self-determination is not just a discretionary academic principle: a mediator is required to conduct a mediation based on this principle and this principle applies at any stage of the mediation, “including mediator selection,…

I mediated many cases before ever having had any training, formal or otherwise, as a mediator. My impression of a good mediator before training was of someone who didn’t engage in any of the “touchy feely” stuff like joint sessions, interests of the parties or self-determination. A good mediator was forceful, got right to business and imposed his will on the parties if necessary to get the case resolved. A good mediator was judged by…

Dealing with impasse is an issue that arises in nearly every mediation that I handle. There are many different ways to address impasse depending on the circumstances of the particular mediation. In certain circumstances I like to suggest to the parties what is referred to as a mediator’s proposal. Determining the “certain circumstances” is more an art than a science but I generally consider a mediator’s proposal when all else has failed to break the…

Anyone that has ever negotiated anything knows the oft repeated phrase “the devil is in the details”.  In my experience as a mediator, I have found that often the parties or their lawyers leave until the very end what are often times significant and important terms of the settlement. I am not suggesting that this is intentional.  In fact most times I believe the terms left until the end are terms that the proposing party…

When you go in to a mediation do you have a plan? If not, I think you are making a big mistake. You would never go in to a trial without a plan. Neither should you enter the mediation room without one. Preparation involves knowing your case – who, when, what, where and why of the case and making sure you have all your documentation together and ready to provide to the mediator and other…

While I have written previously about the use of “Med-Arb”, the concept of binding mediation was foreign to me until recently.  I read an article written by Peter Gene Merrill entitled “Binding Mediation: The Time Has Come for This ADR Process.”  The process is quite simple as described by Mr. Merrill: “Binding mediation commences with a standard mediation process.  Should the parties reach impasse any issue(s) through the standard mediation process, the mediator will be…