Ensuring Client Rights in Mediation: A Guide for Attorneys

.

By Robert E. L. Wright,
Mediator & Arbitrator

Mediation is an increasingly utilized method for resolving disputes, offering clients a flexible, confidential, and self-determined approach to reaching agreements. Attorneys play a pivotal role in ensuring their clients are well-prepared, understand their rights, and navigate the mediation process effectively. The “Bill of Rights for Parties in Mediation,” provides a critical framework for protecting parties’ interests in mediation. Understanding these rights allows attorneys to better advocate for their clients while respecting the principles of mediation.

1. The Agreement to Mediate

Before mediation begins, all parties typically sign an agreement to mediate outlining the terms of the process. Attorneys should review this agreement with their clients, ensuring they understand their rights and obligations. If other adult participants are involved, they may be required to sign confidentiality agreements to maintain the integrity of the process.

2. Understanding the Role of the Mediator

One of the fundamental aspects attorneys must explain to their clients is that the mediator is not acting as a judge or as legal counsel. Unlike litigation or arbitration, where decisions are imposed on parties by a third party, mediation is facilitated by a neutral party who does not provide legal advice or determine outcomes. Attorneys should reinforce that the mediator’s role is to foster productive discussions, not to advocate for either side.

3. The Right to Self-Determination

Self-determination is a cornerstone of mediation. Clients must understand that participation is voluntary (unless mandated by a court) and they are not obligated to reach a settlement agreement. As an attorney, your role is to support your client in making informed decisions while ensuring they do not feel unduly pressured to settle. This autonomy is essential in empowering clients to find solutions which best meet their needs.

4. Confidentiality in Mediation

Mediation is a confidential process, and clients should be fully aware of the extent and limitations of this confidentiality. Attorneys should discuss the legal protections around mediation communications and highlight any exceptions, such as disclosures required by law (e.g., threats of harm or criminal activity). This understanding fosters trust in the process and encourages open dialogue.

5. Involvement of Attorneys and Other Supporters

Clients have the right to bring attorneys, advocates, or other professionals to mediation. This can be particularly valuable in complex cases involving financial, emotional, medical, or psychological considerations. Advance notice to the mediator and other parties is usually required when additional participants are involved and may require a separate confidentiality agreement. Attorneys should also clarify whether their own presence is beneficial for direct participation in the mediation or merely advisory roles before and after sessions.

6. The Option for Private Sessions (Caucuses)

Clients should be informed they may request private meetings (caucuses) with the mediator. These confidential sessions allow for candid discussions without the other party present. Attorneys should strategize with clients on how to use caucuses effectively, especially in cases where direct communication is strained, or emotional barriers exist.

7. Avoiding Coercion and Ensuring Fair Agreements

Mediators facilitate communication but cannot coerce parties into a settlement. Attorneys should remain vigilant to ensure that their clients are not unduly influenced or pressured during negotiations. If at any point the client feels the process is unfair or coercive, they have the right to withdraw. Understanding this right is essential for maintaining the integrity of the mediation process.

8. Enforcing and Modifying Mediation Agreements

Once an agreement is reached, it must be properly documented and enforceable. Attorneys should guide their clients in drafting legally valid agreements in clear, unambiguous language. Clients should also be made aware of their ability (or inability) to modify agreements in the future circumstances should change. It is helpful to draft a proposed settlement agreement with your client in advance of the mediation. It is easier to think in the relative calm of your office than the mediation room with someone who needs to leave for the airport in 15 minutes.

9. Encouraging Independent Legal and Professional Advice

Clients, particularly self-represented individuals, should be encouraged to seek independent legal advice before signing a settlement agreement. Attorneys can provide critical insights into the legal ramifications of proposed settlements. Additionally, clients may benefit from consulting financial experts, therapists, or other professionals to ensure comprehensive decision-making. Mediators may be able to provide referrals to attorneys who will “unbundle” their representation by limiting their services to a consultation in review of the proposed agreement and an explanation of its terms.

Conclusion

Mediation presents an opportunity for clients to resolve disputes in a less adversarial, more cost-effective manner. However, it is imperative that they are well-informed of their rights and supported by competent legal counsel. Attorneys must balance their advocacy with respect for the mediation process, ensuring their clients engage fully, make informed decisions, and achieve fair outcomes. By embracing the principles of the “Bill of Rights for Parties in Mediation,” attorneys can empower their clients while upholding the integrity of mediation as an effective dispute resolution tool.

BILL OF RIGHTS FOR PARTIES IN MEDIATION

By Robert Wright, Mediator & Arbitrator

Parties participating in mediation should know their rights as participants in the process. Ahead of the mediation session, their attorney or the mediator should provide them with an overview of the process. Parties should be made aware of their rights, including:

1. Self-determination. Party self-determination is paramount in mediation. This means that all aspects of the process including process design are open to discussion. Unless a court has mandated otherwise, each party has the right to withdraw from the mediation process at any time and for any reason. Parties are not obligated to reach an agreement. Settling the dispute is voluntary.
2. Role of the Mediator. In mediation, the parties have the right to be represented by an attorney. However, while the mediator can act as a scrivener and record the terms of a settlement reached by the parties, they cannot act as an attorney or provide legal advice to the parties. It is especially important for self-represented parties to understand this limitation.
3. Nature of Mediation. The mediator serves as a neutral third party. This is a key feature distinguishing mediation from other dispute resolution processes. In other processes, such as arbitration, case evaluation and courtroom litigation. In those other processes, the neutral recommends or decides the terms of resolution for the dispute. For a binding resolution in mediation, all parties to the dispute must agree to its terms. Thus, each party determines for themselves whether to resolve the dispute and each party has veto power over resolution.
4. Obligations to maintain confidentiality of the mediation process vary.
   Court-annexed mediations generally are shielded from disclosure by court rules, but those rules vary between state and federal courts. Disputes mediated in the absence of a pending court case tend to only have the protections as agreed by the parties in a written agreement to mediate between the mediator and the parties. Exceptions to confidentiality also vary and should be explained by counsel or the mediator in the agreement to mediate.
5. Roles of Participants. Your right to have other non-parties present in mediation, including attorneys or advocates, is usually allowed upon advance notice to the parties and the mediator.
6. Private Meetings. Parties have the option of meeting with the mediator in separate, private sessions. Information exchanged with the mediator in those private meetings is generally held confidential by most mediators but expectations regarding confidentiality should be discussed with the mediator ahead of time.
7. Mediator Impartiality. The mediator is an impartial facilitator of communication between the parties and has no right to coerce parties to settle their dispute.
8. Enforceability of Agreements. The parties should learn what is required to enforce or modify any agreements they reach in mediation.
9. Consultation with Counsel. Parties, especially self-represented parties, should be informed that they may wish to obtain independent advice and counsel at any point in the mediation process including before signing a settlement agreement. Such advice may come from an attorney, advocates, financial experts, therapists, spiritual advisors, educators, elders, or other supporters.
10. Written Agreement to Mediate. The parties or their counsel will sign a written agreement to mediate containing the terms and conditions for the mediation process and their contractual obligations with the mediator. The mediator should ask other adult participants to either sign the agreement to mediate or a separate confidentiality agreement and provide them with a signed copy of such an agreement.