Monday, July 09, 2007

"Are Pre-Mediation Talks with Mediator OK?"

Answer: Yes.

As a mediator, I am neutral and not biased in favor of or against either party. And even though I know this, I spend quite a bit of time and effort ensuring that the parties know this from my words as well as my actions.

I therefore do whatever I feel is appropriate to maintain my neutral stance to ensure that neither party feels there is an imbalance in my favoritism. I favor all parties. It can be a delicate balance to maintain, but I see this as part of my job as a mediator.

There are no rules that prohibit "ex parte" communications with a mediator. Most people familiar with mediation know that it is ok to have private conversations with the mediator during the mediation but many are unsure whether it is ok prior to the mediation. It is just as acceptable prior to a mediation as it is during the mediation, provided that the mediator feels she is maintaining her neutral role. The mediator may limit the information she wants to know prior to a mediation, and if she does, it is only to maintain her ability to see both sides of the dispute in an unbiased way before knowing all the facts and issues.

So when you call - if you are the attorney for a party or you are the party yourself - to talk to a prospective mediator to make sure this is the right mediator for you, you should be able to discuss the basics of your dispute and get to know the background of the mediator a bit more without feeling you are breaking any rules.

However, if you are calling a mediator who also does arbitrations and you are interested in arbitration services, keep in mind that the rules are quite different. In a mediation, the parties are making their own decisions with the help of the mediator. In an arbitration, the arbitrator is making decisions for the parties (just like a judge) and is not allowed to have private conversations with the parties or counsel either before or during the arbitration.

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