ANOTHER CONCERN ABOUT MEDIATION

Recently, I’ve been addressing concerns that have arisen about mediation, such as feelings that a mediator was not impartial or didn’t explain the process. There is another concern that has been brought to my attention that I’d like to share and to illustrate it I’ve created an example based on several cases. The actual case that follows is not true in and of itself:

In this hypothetical case, a seller and buyer of a small hotel were in dispute over improvements made to the location. A year before the hotel sale, the buyer added a bathroom. He did the work himself and did not securing inspections. The buyer was now faced with a significant added cost of redoing much of that work to meet code requirements. The buyer contended that that work should have been disclosed before the sale. The seller was not contesting that he did the work himself and that he had not secured the required inspections. While he asserted that details were verbally disclosed, nontheless he was ready to discuss a settlement to protect the sale. The buyer was ready to work out an agreement quickly as that part of the hotel had been closed and off limits to guests.

With both parties anxious to settle the mediation process went smoothly. The parties were moving to an “off-the-record” adjustment to the sale price when one party asked to consult with his accountant and his attorney. He believed he heard the mediator say that the objective was to settle this dispute then and there. He believed he was being pressured by the mediator and the other party to settle at that moment.

Let’s just say that after the fact, their agreement came under legal review.

It is most clear in the “Model Standards of Conduct for Mediators” adopted by the Association for Conflict Resolution, the American Bar Association and the American Arbitration Association that mediation must be conducted on the principle of self-determination. This includes that the parties should be able to make decisions freely. In the standards it states, in part, that “where appropriate, a mediator should make the parties aware of the importance of consulting other professionals to help them make informed choices.”

No one during mediation should feel pressured to make an uninformed choice. The parties have the right to stop the mediator or simply ask for a recess. Personally, I’ve done many mediations where a party has asked for a recess to step outside and make a phone call to their attorney. Having done so, they usually return better prepared to reach an agreement that is lasting and have done so with peace of mind.