August 2013 Blog

One of the tenets of mediation is that the mediator should be neutral.  The mediator is there to facilitate a settlement that will keep the adversaries out of court and makes no judgment based on what he or she hears.   Mediation is used in almost all kinds of civil cases including but not limited to, child custody, real estate and personal injury.

In the age of the Internet, mediators and attorneys have established a presence online.  Just like other businesses, these professionals have to let others know they are there.  Hanging a sign outside an office door and hoping someone will drive by and see it or placing a business name in the phone book is not likely to draw the amount of clients needed to sustain a business.

Often defense attorneys, particularly those associated with insurance companies, are the ones who suggest the mediator.   This raises the question about the true neutrality of mediators.  And do insurance companies really want unbiased neutrals?  The answer to this is “yes” based on these principles of mediation, many which are based on state and local court rules.

The mediator/arbitrator makes no decisions.  The settlement terms are actually up to the parties involved.  The mediator is just there to facilitate the discussion.

The mediator is required to disclose any conflicts of interest he or she may have regarding the parties.  For example, if the mediator represented either client in court on another case, that will be disclosed and the mediator may be disqualified.  Both parties must have confidence that the mediator is impartial.

Mediators must not be partial or prejudice to either party because of the party’s background or personal information.  Also the mediator cannot discriminate based on the actions of a party during the mediation process.

Keeping these principles may seem impossible, especially if the case is contentious and one party may seem right or wrong.  This is where the training of the mediator is important.  Most states do not have requirements for practicing mediation but they do have standards and rules adopted by state and local court systems.  If a mediator fails to meet these standards or breaks these rules, he or she could face sanctions.

In addition, many mediators take specific courses that help them with their mediation skills.  Pepperdine University has a master’s of law degree program through their Straus Institute of Dispute Resolution with a Mediation Specialty.  Other colleges and universities across the U.S. offer continuing education in mediation.

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If you have any disputes regarding General Business Issues, Real Estate, Personal Injury, Product Liability, Construction, Aviation and Insurance, contact Michael Rainey at 818.501.1618, visit http://michaelrainey.com, or email him at michael@michaelrainey.com.  As a highly skilled neutral based in Encino, California, Michael brings the right combination of process and personality to successfully reach agreements in mediation, and to make appropriate decisions in arbitration.