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Mediators are neutrals. A mediator is not a fact-finder, and should not act as a judge to decide the merits of a case. The role of a mediator is to be a facilitator, to assist the parties in finding a mutually acceptable resolution of their dispute, not to dictate that resolution. At the start of a mediation, everyone usually agrees that this is the mediator's role. Yet, part of the mediation process is an attempt by each party to convince the mediator that the other party's position is wrong so that the mediator will put more pressure on the other party to alter its bargaining position. After a day of shuttling back and forth between the parties, a mediator often has a good sense of whether a settlement can be achieved, even if the parties have not found common ground. The parties may appear to be dug in to their final positions, and neither will make another offer. It may appear that the mediation has failed, but it may only be that neither party is willing to make the next move to overcome the difference between their positions. In this context, the parties may request that the mediator propose a number that the parties may then only accept or reject. Should the mediator comply with such a request?    

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Often, the actions a mediator takes after the parties have seemingly reached an impasse can be the difference between settling and not settling the dispute. A mediator who has listened well to the parties and has developed a sense of whether or not the case can be settled is more likely to choose an option that allows the parties to reach a settlement of their dispute. If the case does not settle, the mediation is less likely to end with one party feeling that the mediator has not been a true neutral if the mediator has refrained from making a proposal to settle the case. 

Business court refuses to unwind mediated settlement agreement


 


 

 

 

The Parties And The Mediated Settlement

Plaintiff Vivian DeCristoforo was a member of Lindy's Homemade, LLC  and was its former president and CEO.  She and her husband, also an officer of the LLC, sued the LLC, individually and derivatively.  They made claims for a breach of their employment agreements, Wage and Hour violations, tortious interference with their contracts, and violations of fiduciary duty by the individual defendants (who were officers and directors of the LLC).

The parties engaged in mediation in September 2014.  The Plaintiffs said that all parties had settled the case then, although the Defendants challenged that.  The enforceability of the settlement was the issue before the Business Court.

 

The settlement was reflected by the Mediation Report form cover sheet signed by all of the parties attending the mediation, and two of the attorneys, stating "that a full and final agreement of all issues was reached."  The terms of the settlement were described on an attached "Exhibit A."  Some of the attending parties put their initials on Exhibit A, but one of the individual defendants (Kaye) left the mediation before Exhibit A was finalized and he did not put his initials on it.

 

....

 

 

The Lack Of An Agreed Upon Release Did Not Invalidate The Settlement

 

The Defendants' efforts to evade their settlement did not end here.  They said that the agreement became unenforceable when they were unable to agree on the terms of release following the mediation.  Exhibit A said that there would be "a further statement of. . . complete mutual release." 

The Defendants added terms to the post-mediation release which called for the release of federal claims which were not a part of the Business Court lawsuit and also included terms requiring the Plaintiffs to return corporate documents in their possession, also not mentioned in the terms resulting from the mediated settlement.

 

Judge Gale found that the language of the Mediation Report was sufficient to release all of the pending claims in the lawsuit and that the voluntary dismissal with prejudice called for by Exhibit A would have the same effect as a release.  Op. ?57.

 

......

 

 

 

To read more about the Safety Box, read the entire article at the National Institute for Advanced Conflict Resolution  To read Entire Article on Lexology CLICK HERE

 


 

We have just reached the end of the annual marking season (grading for North Americans). The verbal joust of examinations is almost over. Students get their blows in first; teachers' strike back with marks and comments. It's a familiar ritual with its own rhythm and reasoning. It can be viewed as arduous by both sides but markers get a certain satisfaction from novel insights and perspectives; and a salutary reminder of what people actually remember.

For a mediator teaching in a law school there is an additional challenge. Students are being inducted into the great tradition of legal reasoning which sifts 'irrelevant' from 'relevant' matters in the march towards court. Ideas like 'resolution', 'problem-solving', 'collaboration' and 'conflict' can appear odd, even unwelcome. It can't be easy for learners to hear about an alternative to a system they are only just grasping.

 

I am grateful to the 180 first-year Legal Process students who answered this year's mediation question. My task was leavened by some striking observations, a few of which I've quoted below. They provide a useful glimpse of the way Scotland's next generation of lawyers think. They also raise wider issues about lawyers and mediation. As the teacher, of course, responsibility for any haziness with the facts must be entirely mine.

 

On negotiation
Fisher, Ury and Patton's classic 'Getting to Yes' has spawned some interesting variants:
"There are two main forms of negotiation - tough and principled"
"Focus on the people, not their powers"
"Focus on outcomes, not facts"
"People, not power"

 

On mediation
"Mediation is seen by many as a form of second-hand justice"
The legal capture of mediation is gathering pace: "mediation is the introduction of a trained, neutral solicitor"
But it needs to know its place "to assist the resolution of a matter that would simply be too trivial for any court to manage"

 

......

 

 

So, where does this leave us? Not for the first time I find myself calling on my fellow mediators to leave alone the efficiency arguments for our work. Let the market discover that for itself. Rather, let us stress the justice dimension. Ordinary and not-so-ordinary people are provided with the opportunity to negotiate both the outcomes to their disputes and the basis on which those outcomes are judged. This is not anarchic. Mediators are not passive. They can contribute both procedural and normative guidance. To paraphrase a recent critic of mediation, it is not just about settlement, it is all about justice. 

 

Our clients care deeply about the justice or fairness of their outcomes; they will voice severe criticism of the courts if they don't think they got this right; and they will settle or agree only when they are ready to. This process needs to be embraced by the legal system as a way of expanding its legitimacy by de-professionalising justice and bringing 'lay' voices into play.

 

 

 Click Here for Complete Article on Kluwer Mediation Blog 

 

Film Clip
Mediation and mindfully getting in the middle: Brad Heckman at TEDxTeachersCollege

 

In this insightful talk, Brad Heckman discusses mindfulness in conflict mediation. Using poignant humor and his own hand-drawn illustrations, Heckman effectively communicates the necessary balance of emotions, relief and reflection that mindfulness supports in the mediation process.

Brad Heckman is the founder and CEO of the New York Peace Institute and is committed to helping people resolve conflicts by finding creative, durable, and peaceful solutions.





 

Mediation seems to be everywhere these days. Everyone's heard of it, but not everyone understands it; and according to latest CIPD research, too few HR professionals are making use of it.

 

Mediation is a non-adversarial way of resolving difficulties in the workplace.  The mediator is an impartial third party. What makes them different is that they are trained in mediation and they don't take sides. They help the disputing parties to have an open and honest dialogue and secure a mutually acceptable outcome, a win/win outcome. Mediation is different, it's about collaborating rather than blaming, and it gets results. 

 

Here are the 8 main benefits that mediation delivers.

 

1 Time

Everyone is short of time. Whether it's people off sick, tailoring rotas to avoid personality clashes or dealing with formal grievances, disputes eat into everyone's worktime. Mediation aims to address issues early and give everyone the time and energy to concentrate on work.

 

2 Wellbeing and harmony

A sense of wellbeing is key to a content, productive workplace.  Mediation isn't about preventing conflict, which is a healthy part of teamwork, it's about managing it in a way which prevents it building up and causing problems.

 

3 Engaged, innovative workforce

Harnessing the positive sides of conflict and allowing it to take place in a supportive environment fosters creativity and problem solving. It allows those grappling with conflict to reach an agreement which they have come to themselves. It is empowering and rewarding.

 

4 Cost saving

There are the obvious financial costs of conflict such as grievance procedures, settlement agreements and tribunal cases. Then there are the less obvious ones: absence, stress or the damage done by formal investigations. There can also be significant costs to an organisation if employees leave and join competitors. Or, if they stay and remain disgruntled.

 

5 Employer branding

Mediation helps contain and resolve issues within the organisation. Disputes are handled so that no one feels like the 'loser'. This means it is much less likely that disgruntled employees will want to damage the reputation of the organisation and makes an organisation a more attractive employer.

 

6 Restoration of the psychological (unwritten) contract

The 'Psychological Contract' between an employee and their manager may not be written down but it is at the heart of how an organisation functions. When communications break down the employee can get angry and the manager can get defensive. Mediation works to restore trust and understanding on both sides so that the unwritten contract is repaired.

 

 

7 A sense of fairness

It is in everyone's interest to have an embedded sense of fairness. Employers have to be able to demonstrate that they are fair and employees clearly want to be somewhere they are respected. Mediation produces a much fairer outcome than the traditional grievance procedure.

 

8 Increased management and leadership confidence

When an organisation adopts a mediation process, it necessarily instigates training and support for managers. Improving managers' people skills markedly improves their confidence as they then feel able to tackle the 'difficult stuff' of people's feelings.

 

Mediation is definitely not a buzzword. It is about getting real results and bringing lasting improvements to the way your organisation works. To do mediation properly takes time, skill and effort but the time has never been better to consider investing in a programme of mediation skills training.

 

This article originally appeared in HR Grapevine.

 

David Liddle is the Founder and CEO of The TCM Group. 

  Link to TCM website

 

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Thank you for reading my newsletter, and as always, if you have any questions on any of the articles listed, do not hesitate to contact me.

 

Sincerely,

 


Tom Valenti
Thomas P. Valenti, P.C.

300 N. LaSalle St., Suite 4925

Chicago, IL 60654-3406
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