Logo
  • Email
  • LinkedIn
  • RSS
  • Twitter



This website is authored by Lester Levy, Esq.
a founding member of JAMS.

  • About
    • About Lester Levy
  • The Basics of Environmental Mediation
    • What types of Environmental Cases can be mediated?
    • The Benefits of Environmental Mediation
    • The Environmental Mediation Process
    • Insurance Company Involvement
    • The Mediation Outcome
  • Case Studies
    • Case Study 1: Objectivity as Resolution Tool Provided Through A Neutral Expert
    • Case Study 2: Working Together
    • Case Study 3: Swift, Fair and Efficient: Awarding Compensation to Toxic Tort Victims
    • Case Study 4: Sequenced Regulatory and Insurance Negotiations
    • Case Study 5: How Communication Both Causes and Ends Conflict
  • Blog
  • In the News
  • Contact
You are here: Home / Mediation vs. Litigation / Mediation Agreements with Basic Rules Can Increase Chances of Success

Mediation Agreements with Basic Rules Can Increase Chances of Success

May 3, 2016 by Lester Levy Leave a Comment

Mediation-AgreementsThere are no universal rules governing mediation agreements.  Individual ADR providers have policy statements about the conduct of their mediators.  State and federal bar associations publish ethical rules for mediators and mediation advocates.  But there are no rules mandating specific steps that must be taken during any particular mediation – nothing akin to the stepwise procedural rules, which govern judicial proceedings. Like everything else there are benefits and shortcomings associated with this.   I believe that the positives that are created by mediation’s flexibility greatly outweigh the negatives associated with having few procedural rules.

On the plus side, mediations can and should be designed to meet the specific needs of the parties and the dispute. Properly designed, mediations cut to the core of the dispute and resolve it without unnecessary and expensive litigation tactics and discovery.

Recently, however, I have witnessed some trends, which highlight the potential downside resulting from mediation’s lack of strict rules and formal procedure.  I have written about these in prior blogs, including attendance without reasonable levels of authority to settle, party specific mediation strategies that mirror litigation tactics – to which mediation is intended to provide an alternative – or treating mediation as merely another procedural step in the litigation process by “going through the motions” and appearing to mediate without any real intent to reach resolution.

Don’t get me wrong. I still don’t think that the practice of mediation would be well served through the creation of a uniform set of rules that would govern each and every mediation.  The cure in that case would be worse than the disease.  Flexibility, being one of the most potent of mediation assets, would thereby be eliminated – making it much less effective as an alternative to trial and its unyielding set of mandatory procedures.

Instead, I believe, at least in some instances, the parties to a dispute should consider entering into an agreement to mediate, as a preliminary step, in order to establish some basic ground rules and insure a framework that will give mediation the best chance of success.  This practice – of entering into a preliminary agreement to mediate — has already been used effectively in at least one area of law, namely couples seeking a collaborative divorce.  The primary purpose of entering into such an agreement to mediate is that it binds the parties and their counsel to pursue a negotiated settlement as a preferred and true alternative to litigation.  In the context of a collaborative divorce, counsel sign the agreement to mediate and agree not to represent their client in a contested proceeding, in order to insure alignment and commitment to the process of all parties participating in the negotiation.  In a number of jurisdictions, this type of agreement has proven to be highly effective in streamlining the process for couples to resolve contentious issues and obtain a legal divorce, substantially reducing the time and cost necessary to do so.

I’m not aware of any instance in which parties to a commercial dispute have entered into this type of agreement to mediate but there’s no practical or legal reason that it wouldn’t prove equally effective in various commercial contexts.  I think it would prove particularly valuable if deployed among the parties in conflict, because it provides a framework to bring numerous parties together, notwithstanding their divergent agendas, in the common pursuit of a negotiated resolution.  Putting an agreement to mediate in place up front would serve the salutary purpose of binding everyone, including counsel, to give mediation a real chance to work.      

As I see it, in a commercial context an up front agreement to mediate would contain a few important covenants that evidence each party’s commitment to the process, such as the following:

      1. We are coming to mediation to resolve as much of the conflict as possible. We understand that the process involves a serious effort to negotiate settlement and to consider all rational compromises in order to get there

      2. We will bring with us all decision-makers necessary to sign a binding memorandum of agreement, or similarly binding settlement documentation

      3. The decision-makers in attendance will have authority to settle.  (Note that I have avoided using the phrase “full and complete authority” because it is hard to pin down.  It is difficult to know in advance of the mediation the precise authority that will be sufficient to satisfy your opponent.  However, compliance with this commitment requires us to make good faith estimate of settlement value and to ensure our ability to make a binding offer based on that estimate before we arrive.)

      4. If we are coming to the mediation without the ability to negotiate or without the intention of offering anything of substantial value, we will inform our opponents and the mediator so that no one will be surprised and each party can decide for itself whether proceeding further in mediation makes sense.

      5. Finally, counsel agree to pursue mediation as a vehicle to resolve the conflict and not to commence litigation or represent their client in any legal proceeding that may be brought with respect to the pending dispute.

It is the final provision that has proven essential in establishing collaborative divorce as a viable and cost-effective means for resolving the bitter fights over custody and child support.  Of course, clients themselves still retain their rights to pursue court action whenever they deem it necessary; however, they must retain other counsel if and when they chose to do so.  Consequently, under the agreement to mediate, everyone participating in the mediation, including counsel, will be similarly aligned and incentivized to pursue a negotiated solution as a first and preferred alternative.

As I see it, these types of agreements serve a potentially constructive purpose by creating a proper atmosphere in which mediation will have the best chance of success.  It is somewhat akin to the way saloons were operated in the Old West – parties took off their guns and holsters before they sat down to a poker game, in order to prevent disagreement from quickly escalating.  Cutting off quick and easy recourse to the courtroom may serve a similarly salubrious purpose – not so much saving lives as saving time and money and ultimately enabling the parties to find workable common ground to resolve their disputes.  It’s worth serious consideration, in my view.

Share this:

  • LinkedIn
  • Twitter
  • Facebook
  • Email

Related

Filed Under: Mediation vs. Litigation Tagged With: mediation process, mediation vs. litigation, negotation, settlement

inter-generational-theft-Brexit-climate-change

The inter-generational theft of Brexit and climate change

In last week’s Brexit vote results, there was a tremendous divide between age groups. 73% of voters under the age of 25 voted to remain in the EU, while about 58% over the age of 45 voted to leave. This generational gap is among the many parallels … Read More...

drinking-water-regulation

Our Drinking Water Regulation Is So Weak Even Flint’s Water Got A Pass

WASHINGTON — Federal drinking water rules are so relaxed that not even the city of Flint, Michigan, has been cited for a violation, even though many Flint residents have been relying on bottled water for drinking and cooking since last year. The … Read More...

Environmental Mediation: A New Paradigm for Resolving Multi-Party Disputes

Some of you may already have seen a copy of my new ebook, in which I propose a new paradigm for resolving complex, multi-party environmental disputes. It relies on mediation -- not as it has been compromised and incorporated into standard litigation … Read More...

Leave a Reply Cancel reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Tweets by @environmentadr

Environmental Mediation Newsletter

Sign up to receive my environmental mediation newsletter on a monthly basis

Tags

ADR agriculture alternative dispute resolution Apple Apple phones big data Bio diversity Brexit class actions climate change contamination data data analysis eco-friendly environment environmental clean up environmental disputes environmental mediation environmental technology EPA farmed fish Flint global water challenge green living infrastructure legal strategy litigation alternative mediation mediation process mediation vs. litigation nature negotation New Jersey pollution oceans protected areas recycling renewable energy role of mediator settlement sustainability technology toxic tort water water contamintation water summit

About Me

lester-levy

I strongly believe in the value of mediation – said another way, environmental mediation really works. I would go even further: I believe that environmental disputes are perfectly suited to the mediation process – perhaps more so than any other area of legal practice. I have formed these views after mediating environmental cases for more than 20 years, throughout the United States, and having worked with thousands of lawyers, companies, insurance carriers, regulatory agencies and courts. My … Read more

My Latest Posts

  • The inter-generational theft of Brexit and climate change
  • Our Drinking Water Regulation Is So Weak Even Flint’s Water Got A Pass
  • Environmental Mediation: A New Paradigm for Resolving Multi-Party Disputes
  • Flexibility Is Key to Success in Mediation
  • Leaving the EU would put our environment at risk

Connect with Me

Lester Levy

JAMS- New York
620 Eighth Ave. (NY Times Building)
34th Floor
New York, NY 10018
P (212) 751-2700

JAMS- San Francisco
2 Embarcadero Center
Suite 1500
San Francisco, CA 94111
P (415) 982-5267

Copyright 2016-2020 Lester Levy | Site developed by Good2bSocial