MEDIATION PART II

WHAT IS YOUR BEST ALTERNATIVE TO THE MEDIATION SERVICES PROVIDED BY CALIFORNIA SUPERIOR COURT SYSTEM?

As most people today know, there are myriad places where one can turn to find a Mediator outside of the California Superior Court System.

As with much of the information gathering that is sought in today’s world, a person can always turn to the World Wide Web, i.e. the internet.

A good alternative for review is referenced in the Superior Court website:  Mediate.com.  The problem is not a lack of Mediation sites but as with much on the internet an oversupply of places to turn for Mediation and Mediators.

In fact, in preparing for Part II herein the author went on the web, typed in ‘San Diego Mediation’  and there were at least 10-20 separate pages of lists of mediators/ mediator services / and a listing of a number of law firms in addition offering mediation services.
A veritable wealth of information that will most likely overwhelm the great majority of readers.

SOME OF THE MORE WELL KNOWN MEDIATION SERVICES AS ALTERNATIVES TO THE SUPERIOR COURT SYSTEM

1-    JUDICIAL ARBITRATION AND MEDIATION SERVICES ‘JAMS’

2-    JUDICATE  WEST

3-    AMERICAN ARBITRATION ASSOCIATION

4-    OTHER MISC. GROUPS/ LAWFIRMS ETC.

which is the best service to use in helping you with the Mediation process;  enclosed herein are some random musings in that regard:

Do you go with a tried and trained service?  Or do you go with an individual Mediator of which there are many?

A brief discussion of the basic tenets of three of the primary

1.- At the beginning of the JAMS WEBSITE- the authors thereof attempt to demystify the process of Mediation as it will occur at JAMS.

After covering the usual statement about what mediation is etc. they go on to say- Mediators may be requested during the course of a mediation to provide their evaluation of the probable outcome of a dispute were it to be litigated or arbitrated.

The formal procedures found in a court or arbitration proceedings are not present in mediation proceedings.

It is the party’s proceeding; they can fashion it in any way that makes sense to them and the mediatior; This absence of formality provides for open discussion of the issues and allows the free interchange of ideas.

Lawyers, insurance professionals and their clients use the knowledge and skills of a neutral mediator to plan negotiation strategies and develop options for settlement.

Neutrals at JAMS are highly trained, experienced professionals who have received mediation training in the classroom and by observing experienced mediators in the mediation process.

JAMS system provides for a Preliminary Meeting and then a Joint Meeting;

The Joint Meeting (the mediation) usually commences with a joint conference among all of the parties and their counsel.  The session provides an opportunity for each participant, either directly or through counsel, to express their view of the case to the other participants and how they would like to approach settlement.

The opening statements are intended to begin the settlement process, not to be adversarial or a restatement of positions.  This session may last anywhere from a few minutes to many hours depending on the number of participants and the complexity of the issues.

The Mediator will often act as ‘devils advocate’ in these sessions to explore how realistic the positions of the participants are and what is possible considering the no agreement alternative. The mediator will often assist the parties to prioritize interest and options for settlement and to assess the relative strengths and weaknesses of positions.

Once settlement is achieved the mediator will record it for signature immediately to prevent second thoughts from destroying a good agreement.

When appropriate, and in consultation with the participants , mediators will provide a formal or informal evaluation and analysis of the case, to focus on strengths and weaknesses, likely outcome at trial , and value of the case.
These evaluations while very meaningful, are not binding upon the parties.

Follow up often occurs in these matters where no agreement was made during the actual mediation; sometimes there is further information that needs to be tendered.   The mediator can act as a shepherd of this information.

The mediator, once an agreement is made, will work with counsel to finalize a settlement agreement and determine the procedures necessary for implementation.

We will now discuss Judicate West and American Arbitration Association.  Much of the rhetoric will be the same and to the extent it is I will not include the same here.

2. JUDICATE WEST—

A great deal of the general rhetoric of the website for Judicate West sound almost identical to the rhetoric of the JAMS  website..

They claim the years of experience and training necessary to match the neutral’s personality , style and specialty with the attorneys that you will be negotiator arbitrating with and also with what the parties need;

The claim to have the professional training, skill and tenacity to bring the most truculent parties to the table ;

The claim their neutrals all have five years or more on the job training, presumably as a neutral;

Like JAMS  they have a rather large pool of retired Jurists and some attorneys who primarily mediate vs private practice as well.

They also,  like JAMS , have a state, national, and international presence.

The fees for their services are pretty comparable and are not for the faint of heart.

Otherwise, both Judicate West and JAMS are stable  and for the most part reliable resources for mediators.

Like anything else in life, regardless of the service, it really is all about the mediator and your using all of your resources to vet him or her out prior to the agreement to use the same.

3 .  American Arbitration Association   AAA-

AAA was founded in 1928—the claim in their dogma that they have promoted and offered mediation services during that entire time frame.

AAA has a division styled Mediation.Org- through which they provide legion information regarding mediation especially as the parties want/desire to process mediation through the AAA.

AAA’s claim to fame, so to speak has been in the area of large volume of claims; such as with the disaster – Hurricane Katrina;

Another example was the damages claims from Super Storm Sandy;
And too, a series of thousands of claims in a national mortgage case involving foreclosure crises.

Again, as with JAMS and Judicate West, a good deal of their data in their websites deals with mediation issues generically so there is really not that much difference between one and the other.

CONCLUSION—
From this author’s standpoint the three primary services referenced herein do provide reasonable services with some outstanding mediators in their ranks;  one is well advised to check out their services;  lists of mediators, and fees for the entire process as part of your due diligence in choosing the approach that is right for you and or your clients.

Separate and apart from the above are legion individuals such as Steve Kruise; Craig Higgs, Thomas Sharky; James Chodsko; Mike Roberts,  Doug Glass, Doug Barker and many , many other individual attorneys/ mediators who handle these matters through their own offices.   Most of these parties have their own websites and they ought to be thoroughly vetted as well.

One issue you will not have in this search for information, and that will be a lack of information and a lack of mediation services as they are legion.

Good luck in your quest for the same and hopefully are short little article has given you a few helpful ideas along the way.

Respectfully Submitted,
Steven H. Wilhelm

By | 2017-08-07T15:55:07+00:00 June 6th, 2014|