04 Apr This assignment covers the activities that begin before the disputants meet face-to-face or online. Given that online video conference mediation is the new normal. The learning obje

Agreement to Mediate:

This is an agreement between ________ and __________, hereinafter "participants," and ________, hereinafter "mediator," to enter mediation with the intent of resolving issues related to: ____________.

The participants and the mediator understand and agree as follows:

1. Nature of Mediation

The participants hereby appoint __________ as mediator for their negotiations. The participants understand that mediation is an agreement-reaching process in which the mediator assists participants to reach agreement in a collaborative, consensual and informed manner. It is understood that the mediator has no power to decide disputed issues for the participants. The participants understand that mediation is not a substitute for independent legal advice. The participants are encouraged to secure such advice throughout the mediation process and are strongly advised to obtain independent legal review of any mediated agreement before signing that agreement. The participants understand that the mediator's objective is to facilitate the participants themselves reaching their most constructive and fairest agreement. The participants also understand that the mediator has an obligation to work on behalf of each party equally and that the mediator cannot render individual legal advice to any party and will not render therapy within the mediation.

2. Scope of Mediation

The participants understand that it is for the participants, with the mediator's concurrence, to determine the scope of the mediation and this will be accomplished early in the mediation process.

3. Mediation Is Voluntary

All participants here state their good faith intention to complete their mediation by an agreement. It is, however, understood that any party may withdraw from or suspend the mediation at any time, for any reason.

The participants also understand that the mediator may suspend or terminate the mediation if s/he feels that the mediation will lead to an unjust or unreasonable result, if the mediator feels that an impasse has been reached, or if the mediator determines that s/he can no longer effectively perform his/her facilitative role.

4. Confidentiality

It is understood between the participants and the mediator that the mediation will be strictly confidential. As such, all mediation discussions, including all written, oral and digital communications with both participants and their advisors, any draft resolutions, and any unsigned mediated agreements shall not be admissible in any court proceeding. Only a mediated agreement, signed by the participants, may be so admissible. The participants further agree to not call the mediator to testify concerning the mediation or to provide any materials from the mediation in any court proceeding between the participants. The mediation is considered by the participants and the mediator as settlement negotiations. The participants understand the mediator has an ethical responsibility to break confidentiality if s/he suspects a party or another person may be in danger of physical harm.

5. Full Disclosure

Each party agrees to fully and honestly disclose all relevant information and writings as requested by the mediator and all information requested by any other party of the mediation if the mediator determines that the disclosure is relevant to the mediation discussions.

6. Mediator Impartiality

The participants understand that the mediator must remain impartial throughout and after the mediation process. Thus, the mediator shall not champion the interests of any party over another in the mediation or in any court or other proceeding. The participants agree that the mediator may discuss the participants' mediation process with any attorney any party may retain as individual counsel. Such discussions will not include any negotiations, as all mediation negotiations must involve all participants directly. The mediator will provide copies of correspondence, draft agreements, and written documentation to independent legal counsel at a party's request. The mediator may communicate separately with an individual mediating party, in which case such "caucus" shall be confidential between the mediator and the individual mediating party unless they agree otherwise.

7. Litigation

The participants agree to refrain from pre-emptive maneuvers and adversarial legal proceedings (except in the case of an emergency necessitating such action), while actively engaged in the mediation process.

8. Mediation Fees

The participants and the mediator agree that the fee for the mediator shall be $____ per hour for time spent with the participants and for time required to study documents, research issues, correspond, telephone call, prepare draft and final agreements, and do such other things as may be reasonably necessary to facilitate the participants' reaching full agreement. The participants further understand that copying, postage, and long-distance phone calls will be billed to them. The mediator shall be reimbursed for all expenses incurred as a part of the mediation process. A deposit payment of ___________ toward the mediator's fees and expenses shall be paid to the mediator along with the signing of this agreement. Any unearned amount of this deposit fee will be refunded to the participants.

The participants shall be jointly and severally liable for the mediator's fees and expenses. As between the participants only, responsibility for mediation fees and expenses shall be ______________

The participants will be provided with a monthly accounting of fees and expenses by the mediator. Payment of such fees and expenses is due to the mediator no later than 15 days following the date of such billing, unless otherwise agreed in writing.

Should payment not be timely made, the mediator may, at his/her sole discretion, stop all work on behalf of the participants, including the drafting and/or distribution of the participants' agreement, and withdraw from the mediation.

Dated this ____ day of ________, 2021

Signatures

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Opening Statements for Online Mediation / Ground Rules

XXXX and YYYY, many thanks for participating in this process. I wish to assure you that this process is confidential, and I will help to facilitate a constructive dialogue between you both with a view to reach a mutually satisfactory solution. I will not be judging, advising, or providing any solutions. If both of you are happy, we can continue with this joint session and may move on to private session later. It seems that there are two key issues here: (i) ______________; and (ii) ____________. Any other issues you think we need to address?

Hello. Welcome to mediation. I just want to clarify that I will be a facilitator to your conversations. I am not a judge; I am a neutral party. I am not deciding for you. I am here to help you communicate constructively to resolve the issue and hopefully reach an agreement with which you are both happy. I want this to be a safe place without hostility and this conversation is confidential. This is voluntary. I also need to know that you both have the authority to make decisions. Do either of you have any questions about the process before we begin?

Hi, my name is ___. I'm going to be your mediator in this case. Mediation is just negotiation with the assistance of a neutral (that's me). I’m here to help you negotiate with each other and to find a resolution by mutual agreement. I cannot make any decisions in your case. The purpose of mediation is to help you find common ground so you can reach an agreement if you so choose. Traditionally about 3/4s of all matters that go to mediation are settled

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Note that all of the communications in this mediation are confidential — no one outside of the two of you and me will be able to see them, not even the judge. I ask that you keep what is discussed confidential as well. However, be aware that if I hear any threat of violence, or past or present abuse, I am required to report that, and I cannot keep it confidential.

Mediation is purely voluntary, though you are expected to participate in good faith. If you feel this process is not meeting your needs, you can tell me anytime. If we decide not to continue, the mediation will end, and your case will proceed to a hearing in front of the judge.

You have two tabs at the top of this page: one for the joint discussion between all of us, and one for a private caucus between just you and me. If we reach an agreement (either full or partial), I will generate a document summarizing it for you to review. If you do agree with it as written, you can e-sign it — and if both sides e-sign, then it will be e-filed back into the court and shared with the judge. Please let me know if you have any questions or comments about what I shared. Let’s get started.

Hi, my name is _______ and I'd like to introduce myself as the Mediator. The 3 of us have an opportunity to increase the understanding of each of your experiences of what happened and then the two you will have

Hello. Welcome to mediation. I just want to clarify that I will be a facilitator to your conversations. I am not a judge; I am a neutral party. I am not deciding for you. I am here to help you communicate constructively to resolve the issue and hopefully reach an agreement with which you are both happy. I want this to be a safe place without hostility and this conversation is confidential. This is voluntary. I also need to know that you both have the authority to make decisions. Do either of you have any questions about the process before we begin?

I am glad you are both willing to participate in mediation regarding your dispute. However, mediation is a process wherein the parties resolve their dispute following negotiation. I will not decide your case, but rather act as your guide to resolution. You will both have an opportunity to present the details of your case. I usually start with the Complainant and then have the Respondent present their details. Charles, why don't you begin with the details you feel need to be considered?

Thank you for selecting mediation as an option to resolve your dispute. I look forward to working with both of you to help me help you come to a resolution to this situation that you both can live with. Would you be willing to provide me a summary of the situation as you see it and send it only directly to me?

In mediation, I'm here to help both of you negotiate a resolution. Both of you determine what is and is not acceptable. I am not deciding the outcome – you are.

Thank you for participating in this online mediation process. I serve as a neutral, so I am not advocating for either party. My role is to help you come to your own agreement that you each can accept and live up to. Is it correct, that Peter claims that he provided acceptable accounting services but was not paid by the employer? I understand that the employer is claiming that the work was not acceptable, so the employer does not want to pay. It is important to find possible options to resolve this dispute. I can offer some suggestions if you both agree.

Hi Peter and Charles, I will be mediating an online conversation between the two of you to determine what happened from both of your perspectives. I will then help you talk through a resolution that you can both agree to. I am a third-party neutral, which means that I am not advocating for either of you. I am here to help with the communication process. I may ask several questions to help clarify the situation for everyone. It is also important to note that I am not a judge and I will not judge in favor of one side or the other. We will try to resolve this together.

Thanks for participating in this mediation process, and I look forward to assisting you. Before we get too far into any details of your dispute, I´d like to introduce myself, explain how the process works, and we will begin moving forward in a collaborative and productive way.

Hi there, thank you for trying mediation to resolve this issue. I understand everyone is upset about what happened. What I would like to do is to focus on a solution-based conversation and try to get this resolved for you.

Good morning, I am your mediator, and I am here to assist you in your communication to come up with a resolution to this issue. I will serve as your neutral mediator and will assist you in figuring things out for a resolution.

Hello. Thanks for coming to mediation to help discuss and hopefully resolve this dispute. You'll both have an opportunity to present your views. As a neutral it's my job to be fair and objective. Are you willing to take this approach?

My name is Lisa. Welcome to the process. Sounds like you are both extremely frustrated about this situation. Would you both be willing to back up and start from the beginning?

You have such different perspectives and positions that I imagine you to be pretty pessimistic about finding a solution you will both be okay with. I am here to assist as a neutral person and have some ideas that have helped others. It does require you to take a step back and have a conversation in which you understand each other better.

In mediation I am here to act as your guide through negotiation to resolution. It will help me, help you if you can give me a little more background information. Also, please provide any documentation that you feel is relevant.

Thank you for joining the online mediation. This process is voluntary using the services of a neutral facilitator. There are issues that each side has raised that needs further examination. If you are willing, I will be able to help you resolve this dispute after we have an opportunity to discuss the facts and determine a satisfactory solution for each of you. I think it best for both of you to think about solutions that are acceptable to each of you. Can we proceed?

Hello I am XZY, your online mediator. This a voluntary process to resolve your dispute without the need for court. You will each have a chance to state your position and be heard but I do not make any decision, it is your role to decide in your dispute. Let's take a moment for me to explain this process in more detail.

I am hopeful we can work together, through a collaborative process, to resolve this dispute and give everyone a chance to explain your main interests and concerns so we can find an acceptable solution.

I hear the frustration in both your perspectives. This is natural. Let us take a breath and attempt to frame your concerns in a way that can be heard by the other party…

So, let us start with what mediation is and how we can tackle this issue. Mediation is a facilitated negotiation with the goal of finding a resolution by mutual agreement. So, let us start one at a time in a respectful manner. Are each of you willing to commit to problem-solving? If so, let us start with the person who called this office.

Source: If you need more help, visit: http://www.newhandshake.org/onlinemediatorguide

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Assignment 1: Premediation Activities

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PART 1: DRAFTING AN AGREEMENT FOR ONLINE MEDIATION

Overview: A premediation activity is signing an Agreement to Mediate. The sample Agreement to Mediate (included module) includes all the elements for a face-to-face session but does not account for online mediation .  You are about to mediate your first online case next week and you need to update or add to this agreement to use in your online session. Instructions: After reading the required online readings, what new key language would you add or delete to this Agreement to Mediate to account for the online mediation environment for your clients to sign? The objective of Part 1 is to edit Agreement to Mediate to make it applicable for online mediation. Use the module online resources to guide what content you will add or delete to this document.   Note: Keep in mind that you need to complete , adapt, and personalize this document. What you are producing is a new document that can be use in your online mediation session. You also need to ensure that the agreement complies with mediation principles: confidentiality, security, self-determine, etc. (see module resources)

PART 1: My Agreement to Mediate

PART 2: WRITING AN OPENING STATEMENT

Overview: Building on the Agreement to Mediate you wrote for your online clients, you will now create your own personalized Online Opening Statement. Another premediation activity is creating an Opening Statement for the mediation session. A sample opening statement is included the module for you to consider, but it does not include enough language for an online mediation .  You are about to mediate your first online case next week and you need to update or add to this opening statement to use in your online session. A few reminders and considerations: · A sample Opening Statement is included in module. · Keep in mind that an opening statement is not a random collection of words. There are Key Components of the Opening Statements that must be included (revisit your textbook p.96 -104). · Plus, you must consider the online environment: What will you include to tell the parties. For example, Figure 6.1 Sample Opening Statement, p.97 was written for an in-person mediation session and states: “If you need a break, let me know. Bathrooms are just across the hall”. An online mediator would say: “If you need a break, let me know. We will pause the video call and resume after everyone is back on camera”. · Another consideration, what “ground rules” will you include for your online mediation? For example, all parties must be visible and on camera during the mediation session or audio must be turned off, unless you are speaking, etc. Think about other “ground rules” to include in your opening statement to ensure a seamless online mediation. Think about grounds rules concerning confidentiality and caucusing, etc. in an online environment.  Instructions: 1. Using the Opening Statement sample provided, select the paragraphs you need to create your own mediator online opening statement for your next online mediation session. You can edit the phrases, recreating your own personal opening statement. Your opening statement must be at least one-page long and titled: My Online Opening Statement. Remember, your opening statement must include all the key components of an opening statement. 2. Write a brief justification about the things you chose to include in your online opening statement. Add this justification at the bottom of your opening statement in about 1-2 paragraphs and titled: Opening Statement Justification

PART 2: “My Online Opening Statement”

Opening Statement Justification

PART 3: MEDIATING ONLINE

Instructions: After reading the required online readings, use them and quote them to answer each of the following questions in 2-3 paragraphs. Please use additional resources to answer the questions, your textbook does not completely cover the topic of online mediation. 1. How does an online mediation environment affect the choices a mediator may make in structuring a mediation? 2. What would be fundamentally different in the online context as opposed to a face-to-face mediation? 3. Are there some types of mediation that would be inappropriate in an online environment?

REFERENCE PAGE

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