Wild West lawlessness and other tall tales about mediation

201905.13
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Gregg Bertram sat down with Gavin Johnson and Kyle Hulten of The Field Work podcast to talk about mediation’s role in the Washington legal landscape. Their conversation covered a lot of ground, and in this section they dispel some of the myths about mediation. You can hear the podcast in its entirety and get CLE credit for listening at https://www.yourfieldguide.com/courses/mediation-persuasion-authority.

Myth #1 – mediation isn’t binding

Gavin: I know there are a lot of common myths out there that surround mediation. The first one I hear from various clients is this idea that mediation isn’t binding. I’m curious about your thoughts on that myth.

Gregg: Well, it’s actually a truth, if the case doesn’t resolve at or after the meditation, then there’s nothing to be binding. But when parties agree to settle in mediation, that agreement is memorialized right then and there in writing – at least an abbreviated form – and persons with authority, and often their lawyers, sign what’s called (in the Pacific Northwest) a CR2A agreement. And those agreements, if properly executed, are enforceable and binding.

So, yes and no. It’s not binding until it is.

Myth #2 – no rules govern mediation

Gavin: The next one that I hear a lot is that there are no rules that govern mediation, it’s just this free for all, it’s the wild west when it comes to dispute resolution. Curious about your thoughts on this one.

Gregg: Well, I think it’s more wild in other states than it is in the Pacific Northwest. Washington has adopted the Uniform Meditation Act, which defines confidentiality privileges – I think you can call those rules or practices – and our courts, state and federal courts in Washington State, have been very protective of mediation confidentiality.

I think confidentiality is the most important rule. Parties have to know that what they communicate to the mediator in terms of their settlement positions is not going to be repeated in court or otherwise in public, and that the confidences that they tell, the confidences that they communicate to the mediator, aren’t going to be reported by the mediator to the other party or parties, without clear authority.

Myth #3 – facts matter less in mediation

Gavin: Another thing I hear about mediation is that facts matter less in mediation. I think the idea is that whoever speaks the loudest or who is more persuasive in that setting, may have a better outcome, despite the facts. In your experience, is that something that you see?

Gregg:  No. Often the person who’s talking the loudest is holding the weakest hand. Facts are very important. There’s usually a huge imbalance of power. Rarely are disputing parties of equal economic power. In other words, one can afford to go to trial, even if they lose. But for another, especially in the business world, it may kill the business. So, facts matter a lot.

I and most mediators I know spend a lot of time preparing, including pre-mediation phone calls, we ask for written submissions that are sometimes very lengthy, and often legal pleadings, deposition transcripts, other documents, or business analyses are attached. There’s a lot of reading involved in the pre-mediation work for the mediator. Those materials are usually very relevant to a party’s legal position and they can make the difference between winning and losing.

The law is sometimes useful to have on your side. And precedent is sometimes useful, but much of it depends on credibility. There are people who are going to testify. Are they credible or not? And so, are there preexisting facts that clearly demonstrate that a party is not credible or that a key witness is not credible? Those facts are vital to the outcome of the dispute.

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