United States: The Ethical Civil Trial Mediator ~ The Letter, The Spirit And The Practice

The successful civil trial mediator can be nothing short of ethical. To be anything less will destroy his/her practice. The playing field must at all times be balanced. The effort on behalf of the plaintiffs must be equivalent to the effort on behalf of the defendants. The efforts to get each side to their respective goals must be accompanied by a level of trust that will allow a mediator to help the parties move from their goals to common ground and resolution.

Our profession can be mentally, emotionally, and physically draining. The art of actively listening and thereafter communicating with appropriate empathy, interest and objectivity takes 100% focus without time for a lunch break, afternoon exercise, or a call to your spouse. Our profession is a lonely one. After 10-12 hours of successful negotiation, the parties may go home; however, the civil trial mediator must prepare for the next day by reading position statements and getting familiar with the people, their issues, and the status of the case for the next day. You crawl into bed late at night to get 5-7 hours of sleep only to get up in the morning refreshed, energized and ready to take on the challenges of new resolution.

Our ethics stand as our common thread of camaraderie. Our ethics stand as a means by which we can all conduct ourselves for the benefit of one another. Our ethics allow us to work for the betterment of our practices, specifically, and our profession, generally. I have always maintained the attitude that if all mediators can conduct their process at the highest level of integrity and ethical conduct, it will serve for the benefit of all of us. There are more disputes and more cases than any of us know what to do with. The question is, will people trust the mediation process to give peace a chance and who will they place their trust in to mediate? Will your calendar be reserved over the next 10 days or the next six weeks? Our ethical standards stand as the pillars to our glorious profession that provide the citizens of our states and nation an opportunity for self-determination in an impartial, confidential process. I am honored to be a part of this profession and that honor translates into a strict observance of our ethical standards. Those standards have a "letter", "spirit", and a "practice." This article will tie the three together in defining the Ethical Civil Trial Mediator.

I acknowledge that there may be different viewpoints based on different perspectives: academic, sole practitioners, independent contractors, or exclusive mediators with a "for profit" or "not for profit" agency. While this will not change the level of ethical standards, I recognize that there are other views to the approach that I have incorporated in my practice within my law firm. The following background is critical to your understanding of my perspective.

I have been blessed with a full-time civil trial mediation practice. I am called on to mediate primarily multiple party and/or class action cases involving personal injury, wrongful death, complex commercial, employment, environmental and public issue disputes. My calendar is reserved generally six-eight weeks in advance. I mediate within my law firm, Sirote & Permutt, in Birmingham, Alabama, where we have a Mediation Practice Group of two full-time mediators, two contract mediators, and 20 others who are registered with our state. We are currently mediating approximately 500 cases per year.

I began this journey in 1981. After several years of a commercial litigation practice, I found the need, on behalf of my clients, to explore the world of mediation and arbitration. I sought and received training by the American Arbitration Association in both areas. Over the next seven years, I utilized mediation and arbitration as an adjunct to my litigation practice. Occasionally I was called upon to arbitrate or mediate cases for others.

In 1988 I was asked by the Alabama Bar Association to look into the feasibility of more formally implementing mediation. With the help of my state bar Alternatives to Dispute Resolution Task Force, I drafted the Alabama Civil Court Mediation Rules for review and approval by a number of other state bar committees. After three years of review, they were submitted to the Alabama Supreme Court where we received final approval in 1992. At that time, I had mediated and/or arbitrated approximately 100 cases in a diverse number of areas from simple contract cases to anti-trust and trademark infringement cases and from divorce cases to personal injury.

However, beginning in 1992, I began receiving regular phone calls as to my availability as to an even wider range of pending civil actions. I had the opportunity to mediate a number of "visible" cases that captured the public’s attention to the concept of mediation. ¹Attorneys from around the state began to inquire if I could assist them in their cases. With no intent of creating a mediation practice, I began to take on these requests. From one mediation a month to one mediation each day, I have, for the past six years, become a full-time civil trial mediator.

I have always practiced within the context of a law firm and still do. My firm, Sirote and Permutt, has been most gracious and open to the idea of allowing me to expand my practice to accommodate the requests of my professional colleagues. Accordingly, I have created mediation centers in Birmingham, Alabama, as well as in Huntsville, Montgomery, and Mobile, where our firm also has offices. I have been joined by a veteran trial attorney, Marty Van Tassel, a former presiding judge, Stuart Leach, and Maria Campbell, a former chief counsel of a major national bank, the latter two being contract mediators. We have an extraordinarily dedicated staff of one administrator, two coordinators, and a secretary who provide us with invaluable support. Our centers are user friendly and the attorneys and their clients who come within our "neutral setting" are provided with friendly smiles, warm southern hospitality, and an amicable environment within which to resolve their cases.

Our centers are set up to provide a number of amenities from breakfast to lunch and dinner, to coffee, cold drinks, and yes, even wine in the evening! Our facility in Birmingham has been designed to enable us to do large multi-party mediations (where we have mediated in excess of 70 parties) and to handle three to four mediations at a time (with growing room available!)

In my mediating and lecturing around the country, I have found that it is unique for a law firm to be able to accommodate a mediation practice such as the one we have established at Sirote & Permutt. It is more than dollars and cents (although the dollars have been phenomenal for the firm). Equally important has been the professional manner in which we have built our mediation practice. My philosophy is "one mediation begets two, begets four, begets 16 and so on."

As one of the pioneers of mediation in my state, I have also had the philosophy that mediation is bigger than any one individual or any one firm. I have made myself and my firm available to other attorneys and firms who seek to understand how we, as attorneys, can grow this profession in a responsible, ethical and, yes, even profitable way. I wish to share that ethical vision with you in the context of, The Ethical Civil Trial Mediator - - The Letter, The Spirit, And The Practice.²

I choose to address the "process" first because it is first. It is more important than any one individual mediator, any one mediation firm or association, and more important than one set of conflicting parties or court that will otherwise adjudicate their issues. If "the process" can be maintained at the highest level of professional responsibility, it remains available for conflicting parties to utilize with full confidence of its impartiality, confidentiality, and means for self-determination.

1. Self-Determination:

The Alabama Code of Ethics for Mediators similarly recognizes this self-determination in four parts:

1. Parties’ Right to Decide. A mediator shall assist the parties in reaching an informed and voluntary agreement. Substantive decisions made during mediation are to be made voluntarily by the parties.
2. Prohibition of Coercion. A mediator shall not coerce or unfairly influence a party into entering into a settlement agreement.
3. Misrepresentation Prohibited. A mediator shall not intentionally misrepresent material facts or circumstances in the course of a mediation.
4. Balanced Process. A mediator shall promote a balanced process and shall encourage the parties to participate in the mediation proceedings in a nonadversarial manner.
5. Responsibility to Nonparticipating Parties. A mediator may promote consideration of the interests of persons who may be affected by an agreement represented in the mediation process. (Standard 4 Self-Determination, Alabama Code of Ethics for Mediators).

The Florida Standards of Professional Conduct similarly cite as follows:

1. Decision-making. Decisions made during a mediation are to be made by the parties. A mediator shall not make substantive decisions for any party. A mediator is responsible for assisting the parties to reach informed and voluntary decisions while protecting their right to make decisions for themselves.
2. Coercion Prohibited. A mediator shall not coerce or improperly influence a party to make a decision or continue participating in mediation if the party is unwilling to do so.
3. Professional or Personal Opinions. A mediator shall not attempt to interfere with a party’s self-determination by offering professional or personal opinions regarding the outcome of the case.
4. Misrepresentation Prohibited. A mediator shall not intentionally or knowingly misrepresent material facts or circumstances in the course of conducting a mediation.

1. Postponement or Cancellation. If a party is unable to exercise the right of self-determination for psychological, physical or other reasons, a mediator shall postpone or cancel mediation until such time as all parties are willing and able to resume. (10.031 Self-Determination, Standards of Professional Conduct, Florida Rules for Certified and Court-Appointed Mediators).

The above-cited standards represent the "letter" of professional ethics. The "spirit" of these rules can be understood by the comments that accompany the standard:

The mediator may provide information about the process, raise issues, and help parties explore options. The role of the mediator is to facilitate a voluntary resolution of the dispute. The parties shall be given the opportunity to consider all proposed options.

A mediator cannot personally insure that each party has made a fully informed choice to reach a particular agreement, but it is a good practice for the mediator to make the parties aware of the importance of consulting other professionals who are appropriate to help them with informed decisions. (I. Self-Determination, Model Standards of Conduct for Mediators).

The Florida Standards comment:

The "practice" of self-determination is very consistent with both the letter and the spirit as set forth above. In a civil trial setting, attorneys may not have been able to communicate. A neutral can help with those communications. Sometimes the parties (or representatives of the parties) have not been as engaged as is necessary during the course of litigation. Mediation provides an opportunity for a "hands on" experience and process of reevaluation. Some attorneys, or their parties, are looking for a neutral who, upon invitation, can provide an objective third-party analysis of possible outcomes without offering "his or her personal or professional opinion."

In practice, the parties to a mediation will each have their own goals of resolution. More times than not, these goals are not the same. Plaintiffs see it from their viewpoint as do the defendants from an opposing viewpoint. Using the numerous criteria for principled negotiation³, an artful, yet ethical mediator can pose objective inquiries to review opportunities as well as risks for the purpose of finding common ground. The successful civil trial mediator achieves resolution, not by coercion or third party opinionating. Rather, once the mediator allows the parties to "build their own reasonable ball park" of resolution with their own "reasonable goals" he/she may facilitate a resolution by exploring common ground through questions, options, and alternatives. I have been able to bring together gaps of millions of dollars with verdict or judgment analyses, with "interests analyses", and when requested, with a mediator’s proposal.⁴

How is the requirement for self-determination affected by the professional advice of the mediator? The ethical standards in both Alabama and Florida speak to the limitations on professional advice. The general rule is:

The Florida Standard similarly cites:

The spirit and the practice of these rules allow a mediator to facilitate the process for the parties as actively as the parties jointly request upon being fully informed of their options. My job in achieving resolution is simply to let the parties know what those options are. If they choose not to use them, they will negotiate with or by sharing their own evaluations. To the extent that they request a third party analysis, I am as available as they mutually agree.

1. Impartiality And Conflicts Of Interests.

I must begin here with a practice point. A mediator will not make a living being anything other than absolutely, totally impartial. A mediator will not mediate beyond one case if that impartiality is breached. The existence of impartiality is as much "a given" to a civil trial mediator as a bat and ball are to a baseball player. (You can’t survive without them).

The Model Standards of Conduct for Mediators addresses impartiality and conflicts of interests as follows:

The concept of mediator impartiality is central to the mediation process. A mediator shall mediate only those matters in which she or he can remain impartial and even handed. If at any time the mediator is unable to conduct the process in an impartial manner, the mediator is obligated to withdraw. . . .

A conflict of interest is a dealing or relationship that might create an impression of possible bias. The basic approach to questions of conflict of interest is consistent with the concept of self-determination. The mediator has a responsibility to disclose all actual and potential conflicts that are reasonably known to the mediator and to reasonably be seen as raising a question about impartiality. If all parties agree to mediate after being informed of conflicts, the mediator may proceed with the mediation. If, however, the conflict of interest casts serious doubt on the integrity of the process, the mediator shall decline to proceed.

The mediator must avoid the appearance of conflict of interest both during and after the mediation. Without the consent of all parties, a mediator shall not subsequently establish a professional relationship with one of the parties in a related manner, or in an unrelated manner under circumstances which would raise legitimate questions about the integrity of the mediation process. (II. Impartiality; III. Conflicts of Interests, Model Standards of Conduct For Mediators).

The Alabama Code of Ethics For Mediators similarly cites:

A mediator shall be impartial and shall advise all parties of any circumstances that may result in a possible bias, prejudice or impartiality on the part of the mediator. Impartiality means freedom from favoritism or bias in work, action, and appearance. The impartiality implies a commitment to aid all parties, as opposed to one or more specific parties, in moving toward an agreement. (Standard 5. Impartiality and Conflicts of Interest, Alabama Code of Ethics For Mediators.)

The Florida Standard likewise provides:

Impartiality means freedom from favoritism or bias in word, action, or appearance. Impartiality includes a commitment to aid all parties, as opposed to any individual. A mediator shall maintain impartiality but may raise questions for the parties to consider the reality, fairness, equity and durability and feasibility of the proposed options for settlement.

A mediator shall withdraw from mediation if the mediator is no longer impartial.

A mediator shall neither give nor accept a gift, favor, loan, or other item of value to or from a participant in any mediation process. During the mediation process, a mediator shall not solicit or otherwise attempt to procure future professional services from a party. (Rule 10.033 (a)(b) and (c), Part 2, Standards of Professional Conduct, Florida Rules For Certified and Court-Appointed Mediators).

A mediator shall not mediate a matter which presents a clear or undisclosed conflict of interest. A conflict of interest arises when any relationship between the mediator and the parties, their representatives, or the subject matter of the dispute compromises or appears to compromise the mediator’s impartiality.

The burden of disclosure of any potential conflict of interest rests on the mediator. Disclosure shall be made as soon as practical after the mediator becomes aware of the interest or relationship giving rise to the potential conflict of interest.

After appropriate disclosure, the mediator may serve if all parties agree. If there is a conflict of interest which clearly impairs a mediator’s impartiality, the mediator shall withdraw regardless of the express agreement of the parties.

A mediator shall not create a conflict of interest during the mediation. During a mediation, a mediator shall not provide any services which are not directly related to the mediation process. (Rule 10.034 (a), (b), (c), and (d), Part 2, Standards of Professional Conduct, Florida Rules For Certified and Court-Appointed Mediators).

The "spirit" of these rules is set forth in the official comments:

The mediator shall avoid conduct that gives the appearance of impartiality toward one of the parties. The quality of the mediation process is enhanced when the parties have confidence in the impartiality of the mediator.

A conflict of interest is a dealing or relationship that might create an impression of possible bias. The basic approach to questions of conflict of interest is consistent with the concept of self-determination. The mediator has a responsibility to disclose any and all potential conflicts that are reasonably known to the mediator and could reasonably be seen as raising a question about impartiality. If all parties agree to mediate after being informed of conflicts, the mediator may proceed with the mediation. If, however, the conflict of interest casts serious doubt on the integrity of the process, the mediator shall decline to proceed. (Comments to II. Impartiality, and III. Conflicts of Interest, Model Standards of Conduct For Mediators).

The spirit as addressed by the Florida Standards is as follows:

A mediator has an affirmative obligation to maintain impartiality through the entire mediation process. This rule does not preclude a mediator from giving or accepting deminimus gifts or incidental items provided to facilitate the mediation.

The duty to maintain impartiality arises immediately upon learning of a potential engagement for providing mediation services. A mediator shall not accept or continue any engagement for mediation services in which the ability to maintain impartiality is reasonably impaired or compromised.

In the event circumstances arise during the course of a mediation which would reasonably be construed to impair or compromise a mediator’s impartiality, the mediator is obligated to withdraw. (Committee Note, Rule 10.033 Impartiality, Part 2, Standards of Professional Conduct, Florida Rules For Certified and Court-Appointed Mediators).

The question becomes how to bring the "letter", the "spirit" and the "practice" together. This is a critical issue when you are in a law firm with 120 attorneys in four different cities representing clients in a number of different contexts. What I have learned is that attorneys and their clients come to mediate with the mediator, not the firm.

I have a standard procedure for identifying all conflicts, actual, potential, or apparent. I disclose these in my initial communication to the attorneys. I ask that they advise their client of these and provide me with an affirmative statement of waiver. I invite any questions or clarifications. Thereafter, I receive a waiver as part of the position statements of the parties. Again, at the mediation, I have a formal waiver form for signature of not only the attorneys but their clients.

Since I have been a full-time mediator within the law firm, I have only been precluded from serving on less than a dozen cases. In fact, I have even been requested to mediate on cases where my partners were representing one or the other sides. This has been at the express request of the opposing attorney and his client. I have specifically provided that the waiver apply not only to the mediation, but any subsequent litigation.

Again, the attorneys and their clients come to mediate with me, individually, and not my firm. We have an unbendable rule of the separateness and confidentiality of my files and my work product and my firm respects that separateness without exception. In fact, the firm has established our mediation center in a separate portion of the building. In our five story structure, we are on the first floor with eight conference rooms available for confidential caucusing. We are removed from all other activities of the firm and parties can come in and out of our center without any contact with the rest of our firm.

By special design and practice, the administrative procedures of our mediation center make an express statement of neutrality.

2. Confidentiality.

As stated above, confidentiality is a paramount element to the success of the process. The "letter" is exemplified by the standards which state as follows;

The Alabama Code of Ethics for Mediators similarly sets forth the "letter" as follows:

The Florida standards similarly set forth the "letter" regarding confidentiality:

The spirit of these rules is exemplified in the comments to the Model Standards:

Through practice, God has given me a great ability to forget. Attorneys or parties will frequently ask me to recall a mediation I did several weeks ago. I can only smile and explain the supernatural dilemma that God has ordained on me. On a more serious note, the reality of confidentiality is indeed an important element to achieving resolution. The ability to resolve a particular case may be may be subordinate to the ability to maintain its confidentiality. I have seen confidentiality protect not only a national or international corporation, but also a plaintiff who does not want friends and relatives to know of the outcome. Confidentiality can also be an asset to an otherwise public corporation, institution or governmental agency. While ultimately the "sunshine" must be shown on such ultimate resolution, the confidential means of achieving that resolution is of great mutual benefit to the parties engaged in the process. Whether issues of negligence, breach, discrimination, or the like, a mutual disclosure of respect between the parties can not only resolve the immediate conflict, but can keep a community at peace instead of disruption.

In conclusion, self determination, impartiality, and confidentiality are the pillars that make the process of mediation the "darling" of dispute resolution generally, and civil trial mediation specifically.

II. The Mediator

1. Qualifications And Commitments:

The Alabama Code of Ethics requires:

The Florida Standards speak to the mediator’s responsibility to the parties⁵, to the mediation process⁶, to the courts⁷, to the mediation profession⁸, and to other mediators and professionals⁹.

The spirit and practice of these rules are concurrent: Mediators have obligations to the parties, to the courts, and to the profession. Our individual and collective commitment to the process, to the parties, to the court, and to each other insures that the endurance of the mediation process.

As a matter of practice, each year I engage in specialized continuing legal education in the area of mediation. I have had the great honor of participating in Harvard’s Negotiation Project for two different summers. I have also had the privilege of attending Pepperdine University’s Strauss Institute for Dispute Resolution Advance Mediation Course. In addition, I have attended the American Bar Association’s Alternative Dispute Resolution Committee seminar, as well as seminars sponsored by the CPR Institute for Dispute Resolution, the American Arbitration Association, and the Society of Professionals in Dispute Resolution. It is impossible to go to all of these. But one or two a year (especially in the university setting) assists in not only sharpening a mediator’s skills, but in validating that which we do on a daily basis. I commend the above programs to each of you.

As to commitment, it must be absolute. The parties, their counsel and the courts must be able to rely on the mediator’s commitment to full resolution. Any wavering from this absolute commitment interferes with the unique role of the mediator to serve as the voice to encourage resolution. Through all obstacles or hurdles, the mediator must remain the positive force that maintains that a negotiated resolution is a better option than a litigation.

I have learned that mediation is not "an event." It is "a process." Thus, at the end of a mediator’s day (or night) gaps in positions or evaluations simply require additional work-discovery, motions, or simply deliberation. Whether through the mediator, the attorneys, or the parties, further consideration for dialogue or negotiation should be pursued. This may occur within days of the mediation or as late as following a verdict or while awaiting an appeal.

In the words of Yogi Berra, "It’s not over until it’s over." My absolute commitment extends beyond the day of mediation to periodic yet timely post mediation caucuses with counsel, separate or collectively. I am of a mind that when the attorneys and their clients select me, they "adopt" me as the "designated resolver." I never quit - - unless requested otherwise. That commitment distinguishes my practice and that of our Sirote & Permutt Practice Group.

Yes, there is a "letter", "spirit", and "practice" with regard to fees of mediators. Under the Model Code:

Under the Alabama Code of Ethics, fees are addressed as follows:

The Florida standards are similar:

1. Time charges for mediation services should not exceed actual time spent or allocated.
2. Charges for costs should be for those actually incurred.

1. All fees and costs should be appropriately allocated between the parties.
2. When time or expenses involve two or more mediations on the same day or trip, the time and expense charges should be prorated appropriately.

1. the basis for and amount of any charges for services to be rendered, including minimum fees and travel time;
2. the amount charged if the participants postpone or cancel mediation sessions and the circumstances under which such charges will be assessed or waived;
3. the basis and amount of charges for any other items; and
4. the parties’ pro rata share of mediation fees and costs if previously determined by the court or agreed to by the parties.

The "spirit of these rules is again fairly straight forward: Set and disclose all fees, expenses and other charges from the outset; be accountable for same; maintain records for purposes of accountability; and provide pro bono when appropriate and possible. The "practice" is also straight forward: Some charge on a hourly basis to be divided by the parties, other charge fixed fees to be divided by the parties; and others charge per party per hour rates. I utilize a combination of per party per hour and fixed fees. At this time I am charging $120.00 per party per hour for a two-party mediation. If it is a three-party mediation, it is reduced to $90.00 per party per hour. A four-party mediation is $80.00 per party per hour. A five-party mediation is $70.00 per party per hour, and so forth.

Instead of setting a rate that is just divided by the parties, I am setting a reduced individual rate with a higher collective potential. I believe that as mediations become multi-partied, they become more complex, requiring more skill and expertise of the mediator. In addition, the utilization of our facilities is multiplied by the number of parties that are using them. The more parties, the more rooms, the more amenities, and the more overhead that I incur. Likewise, when I travel out of state, I believe there is a reasonable premium that can and should be considered by my absence both from my office and from home. In mediating multiple cases, or class actions, I implement a fixed fee per side. In this way the fee can be distributed by the attorneys among the numerous parties represented.

When you are engaged in mediation as a full-time professional, each day is precious. If it is lost by a postponement, cancellation, or a prior settlement of a case, I lose the day and the revenue therefor. Accordingly, I believe that a reasonable security deposit is appropriate for any day secured. If that day is canceled or postponed within 21 days, I will apply this security deposit unless I can otherwise fill the date. Outside the 21 days, the security deposit is retained for any new date or returned if the mediation is canceled.

I am at all times very sensitive to the attorneys and their parties in implementing this security deposit policy. In fact, by my personal discussions with the attorneys, I turn this in to a marketing opportunity with positive ramifications for the attorneys, their clients and myself. The establishment of a security deposit policy provides the leverage to cover your date, or alternatively, to create a marketing opportunity that you would not otherwise have.

The security deposit also provides a means of lowering my accounts receivables. In other words, when the mediation is completed, I apply the security deposit towards the mediation fee earned and simply bill for the balance owed. Having a security deposit in hand allows for an up-front payment upon conclusion of the mediation.

I provide at least two pro bono mediations (at least 8 hours) each year. I make this available through the state and/or federal courts. I also have chaired the Alabama Dispute Resolution Committee by which I give of my time without charge to attorneys and their clients in fee disputes.

In the last six years I have been totally committed to the advancement of mediation, not only for myself and my firm, but for all who wish to engage in the honor of its purpose - - the advancement of resolution by the parties themselves through an impartial, confidential mediation process. I take great pride in watching it grow for all of us. With more conflict than all of us can handle, the "pie" of mediation opportunities is not limited. Its only limitation is the quality of the process that we make available. The higher that quality, the more we all benefit.

The letter, spirit and practice of our ethical charge is as critical to our existence as any standards of ethics of any profession. However, these ethics do not exist in a vacuum. They require practical implementation and practice.

As we ask conflicting parties and their attorneys to trust the process, that process and those who are its guardians must be trustworthy. The practical implementation of the "letter" "spirit", and of our standards allows the Ethical Civil Trial Mediator the opportunity to earn that trust. It becomes our responsibility to maintain it.

1One such case involved a predominately African-American community which sought to enjoin the opening of a garbage transfer station. The city had given a company a permit to use the property, and it built a $7 Million Dollar facility. On the eve of operation, a lawsuit was filed to shut it down. After 10 days of negotiations, we met the needs of all parties with a resolution that was heralded as a win-win-win situation for all parties.

A second public issue for which mediation provided visibility was a public school equity funding suit. A number of school districts that did not have the revenue base of others filed suit against the state board of education, the governor, and other state officers over issues of inadequacy and inequity of public education. After years of litigation, the court threatened to enjoin the board from opening the schools if an equitable formula was not put in place. After two weeks of mediation among 129 school districts, the boards, and superintendents, as well as state officials, we created an equitable formula which enabled the school year to proceed.

2I will use as my primary authoritative sources the following: The Model Standards of Conduct for Mediators as prepared by the Joint Committee composed of delegates from the American Arbitration Association; The American Bar Association; and The Society of Professionals in Dispute Resolution; The Alabama Code of Ethics for Mediators (effective March 1, 1996, including amendments received through May 1, 1999; and The Florida Rules For Certified and Court Appointed Mediators (Part 2, Standards of Professional Conduct).

3See, Getting to Yes, Roger Fisher and William Ery (Second Edition, 1991). Objective criteria include special damages, defenses, costs of litigation, policy limits, risks and precedence, reasonable verdict and settlement analysis, and BATNA - - (best alternative to negotiated agreement) - - a verdict or an appellant court decision.

4There are times that the parties get backed into a corner by their negotiating strategies. We have all heard, "I’m at my bottom/top line." Indeed, that may be the case, but in confidentially speaking with the parties, there may be a point beyond that to the area known as "common ground." If the mediator sees the potential for such "common ground", he or she can suggest a "mediator’s proposal" without compromising the last negotiated move of either party. The mediator’s proposal is established by the mediator, who after hours of listening jointly and separately to each side sets forth a proposal that represents common (not necessarily middle) ground between the parties. It may be a suggested dollar amount or it may include other factors. Whatever the proposal, it is shared either jointly or separately with all sides to review and respond in a confidential manner. The responses remain confidential until the mediator has received the responses of all parties. Once received, the mediator will publish either all yeses or all nos. If all responses are positive, the mediator publishes a "yes" and the case is resolved. If the mediator receives one "no", confidentially, the mediator publishes a failure to resolve and the parties may adjourn to reevaluate their positions, continue negotiating, or terminate the negotiations and proceed to trial.

5The purpose of mediation, unlike court-related adjudicatory procedures, is to provide a forum for consensual reconciliation by the parties. A mediator’s responsibility to the parties thus includes honoring their right of self-determination; acting with impartiality; and avoiding coercion, improper influence, or conflicts of interest. A mediator is responsible for maintaining an appropriate demeanor and preserving the privileged and confidential nature of the process. A mediator’s business practices should reflect fairness, integrity and impartiality. A mediator is also responsible for considering the interests of non-participating parties. (Rule 10.030 Mediator’s Responsibility to the Parties, Part 2, Standards of Professional Conduct, Florida Rules for Certified and Court-Appointed Mediators)

6The benefits of mediation are achieved only if the process is conducted in an appropriate manner. A mediator is responsible for confirming that mediation is the appropriate process and for conducting the mediation in a balanced and timely fashion. Parties to a mediation must be informed about the process and the role of the mediator. (Rule 10.040 Mediator’s Responsibility to the Mediation Process, Part 2, Standards of Professional Conduct, Florida Rules for Certified and Court-Appointed Mediators.)

7Although the use of court-ordered mediation may reduce the need for direct judicial involvement, the mediator is accountable to the referring court which has ultimate responsibility for the case. (Rule 10.050 Mediator’s Responsibility to the Parties, Part 2, Standards of Professional Conduct, Florida Rules for Certified and Court-Appointed Mediators).

8In order to encourage the use and public acceptance of mediation, a mediator shall support and preserve the integrity and quality of the profession. A mediator is responsible for maintaining professional competence and forthright business practices, fostering good relationships with others, assisting new mediators, and generally supporting the advancement of mediation. (Rule 10.060 Mediator’s Responsibility to the Mediation Process, Part 2, Standards of Professional Conduct, Florida Rules for Certified and Court-Appointed Mediators).

9A mediator shall respect the professional relationship of a party with another mediator and refrain from any conduct which would harm that relationship. A mediator shall respect the role of other professional disciplines in the mediation process and shall promote cooperation between mediators and other professionals. (Rule 10.066 Relationships with Other Mediators; Rule 10.067 Relationship with Other Professionals, Part 2, Standards of Professional Conduct, Florida Rules for Certified and Court-Appointed Mediators).