Presented By: Rob Eichelbaum Davis Law Firm Adj. Professor St. Mary’s University School of Law.

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Transcript of Presented By: Rob Eichelbaum Davis Law Firm Adj. Professor St. Mary’s University School of Law.

THE MEDIATOR’S CREED

ETHICAL CONSIDERATIONS FOR SELECTING A MEDIATOR AND PARTICIPATING IN A MEDIATION

Presented By:Rob EichelbaumDavis Law FirmAdj. Professor

St. Mary’s University School of Law

Defining Mediation

Mediation is a forum in which an impartial

person, the mediator, facilitates

communication between parties to

promote reconciliation, settlement, or

understanding among them.

Tex. Civ. Prac. & Rem. Code §154.023(a)

Who Serves as Mediator?

An impartial third party.

Some Training or Experience.

Trusted and/or Respected by All Parties

Recommended and/or Appointed by the

Court

So You Need a Mediator…Who Do you Select?

Selecting A Mediator

No Opinion

Client Issue

Cost

Other

Previous Use

OutsideReferralReputation

SABA Survey - 2009

WHEN SELECTING A MEDIATORCONSIDER

THE MEDIATOR’S CREED

Communication Skills

Risk Analysis

Experience

Evaluative Standard

Distribution Analysis

Communication Skills

Does the Mediator understand what the parties are saying?

Is the Mediator picking up both verbal and non-verbal cues from the parties?

Is the Mediator overlaying his/her definition concerning “subjective interests”?

OCEAN

Communication Skills

Does the Mediator understand what the parties are saying?

Is the Mediator picking up both verbal and non-verbal cues from the parties?

Is the Mediator overlaying his/her definition concerning “subjective interests”?

Subjective Interests

Love Respect Power Safety Security Control Approval Freedom

Appreciation Independence Self Esteem Acceptance Trust Understanding Consideration Safety

Risk Analysis

Money

Time

Risk

Other

Experience

Subject-Matter Expertise

Mediation Background

“Interpreter” Skills

Respect of the Parties and Party

Advocates

Ability to Deal with High Conflict People /

Highly Charged Emotional Issues

Evaluative Approach

Interest Based Mediation

Rights Based Mediation

Rights Based Mediation

Primary focus is on the Conflict

Mediator tends to be more Evaluative

Mediator spends less time on Party

Relationship

Mediations tend to “wrap up” or go to

“impasse” quicker

Interest Based Mediation

Primary focus is on the Parties

Mediator tends to be more Conciliatory

Mediator spends more time on

Relationship perhaps to the detriment of

the conflict

Mediations tend to extend to multiple

sessions

Evaluative Approach

Interest Based Mediation

Rights Based Mediation

Distribution Analysis

Intensity

Egalitarian Rationality Holistic

Distribution Analysis

The Experiment Leave $100.00 in a

room, but don’t let the other people know it belongs to you.

Announce that you have “found” the money and ask others what to do with it?

Egalitarian Analysis

Will suggest the money be shared by all Divide it Amongst those in the Room Put into a communal pot (Group Snack)

Try to Find a Solution toSatisfy Everyone

Rationality Analysis

Will suggest the money be given to the “Right” Person Finders / Keepers Track Down the Original Owner Most Deserving

Try to Find a Solution Based upon a Logical / Legal

Argument

Holistic Analysis

Will suggest the money go Somewhere Else Give it to Lost and Found Donate it to Charity

Try to Find a Solution to Satisfy A Greater Interest

or Avoid a Solution to Keep Peace

Distribution Analysis

Intensity

Egalitarian Rationality Holistic

WHEN SELECTING A MEDIATORCONSIDER

THE MEDIATOR’S CREED

Communication Skills

Risk Analysis

Experience

Evaluative Standard

Distribution Analysis

WHAT TO DO WITHTHE MEDIATOR’S CREED

Analyze which Skills Best Help You to Resolve the Case

Consider how the Mediator will interact with your client

AND the other parties

HOW DO YOU FIND OUT THE MEDIATOR’S CREED

Previous Experience with the Mediator

Do Your Research•Peer Opinions

•Articles / Organizations

ASK THE MEDIATOR!

WHEN SELECTING A MEDIATORCONSIDER

THE MEDIATOR’S CREED

Communication Skills

Risk Analysis

Experience

Evaluative Standard

Distribution Analysis

Conclusion

Rob Eichelbaum

Davis Law Firm

Tel. (210) 826-7557

Robe@jeffdavislawfirm.com