Mediation Message No. 131


If a plaintiff, defendant or representative of either is unfamiliar with the mediation process, I begin their separate caucus by talking about confidentiality, my neutrality and the uncertainty and expense of litigation. These introductory comments are intended to put them at ease and serve as a bridge to the more critical discussions about the cases, themselves. The comments are, as follows:

Mediation confidentiality – The only rule or requirement about how a mediation is to be conducted is that it is confidential, which means that everything that happens here is off the record and cannot be used in any way later on, if this process should be unsuccessful. The purpose of confidentiality, which is created by statute and confirmed by court decisions, is to allow us to talk freely, without any concern that what we talk about can be used against you. (If a party appears to be nervous, I may precede the discussion about confidentiality with the observation that “There’s no need to worry about this process. It’s confidential, you’re not going to be in the same room with the other side and you have your attorney to answer any questions.”)

Mediator neutrality – I don’t represent anyone here; I don’t represent you and I don’t represent the other side. My neutrality doesn’t mean that I can’t or don’t have opinions about the facts and law in this case. In other words, I’m not a potted plant (pointing to a real such plant if it’s visible) and will do more than relay demands and offers. Like Brendan Sullivan, who actively represented Oliver North in the Iran-Contra hearings and told the Senators he was not a “potted plant,” I’ll probably make comments about the applicable facts and law, if I think they’ll be helpful.

The uncertainty and expense of litigation –Mediation is a well-accepted alternative to litigation and trial (or arbitration). If you follow the results of trials in the papers or on television, you know that their outcomes are uncertain because judges are the gatekeepers of the evidence juries can hear and jurors, ordinary citizens like you and me, can make surprising and unpopular decisions. Further, your trial may not take place for quite a while. Before that, there will be discovery of all types, which will involve your participation, including your probable testimony at deposition. This time-consuming process, which is also expensive, is never good for anyone’s emotional well-being.

Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
(310) 201-0010

Copyright Michael D. Marcus, March 2017

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