What is the “Mediation Privilege?”

Much has been discussed over the years as to the importance of maintaining the concept of confidentiality as part of the mediation process. Any concern relating to lack of confidentiality during the process would risk the incentive of openness and honesty during settlement discussions. In that the concept of confidentiality is crucial for a successful … Read more

The Shifting Laws Relating to Non-Disclosure and Confidentiality Provisions in Settlement Agreements

Mediators who work in the employment arena helping to resolve employee claims for discrimination, harassment or retaliation are facing new challenges when it comes to the issue of including standard provisions in their settlement documents that address the confidentiality and non-disclosure of the terms of the agreement. Typically, an employer’s motivation for reaching a pre-trial … Read more

Creative Thinking in Mediations

The black robed judge peered over the elevated large wooden bench and spoke to the litigants with a stern tone. “I’m suggesting that the parties attempt to mediate their dispute. Why? Because all I can do from the bench is issue a money judgment either for or against one of the parties. But in mediation … Read more

The Mediator’s “Proposal”: Is it worth it?

It is certainly not that uncommon to be in a mediation where one side feels that it has moved to its “lowest number” while the other side has reached its “highest number” and the gap cannot be overcome. It is at a juncture like this where mediators can choose to insert themselves into the negotiation … Read more

Mediation as a Platform For Settlement Negotiation

Certainly, when parties are otherwise unable to reach consensus on a settlement, the decision to utilize mediation as another method to enhance discussions is oftentimes a positive choice. Mediation offers the parties a new “playing field” where each side can arrive with a new perspective on resolution. Mediation offers the opportunity to include a third … Read more

Debate Over Opening Statements in Mediation

There is an ongoing debate over the benefits of including opening statements in mediations. Opponents claim that allowing opposing parties to make (possibly vitriolic) statements, outlining the strengths of their respective cases and the weaknesses of the opposition, is the last thing needed right before the parties attempt to resolve their dispute. Supporters contend that … Read more

What is “Success” in Mediation?

We’ve all heard it said that a successful mediation is when “everyone leaves unhappy”. Certainly, the expression is intended to convey that sometimes to make a mediation work, the plaintiff gets less than they expected to receive, and the defendant pays more than they expected to pay- so everyone is unhappy. Such a sentiment may … Read more