GUEST-POST PART VIII | Questions Clients Have about Mediation: Is the Mediator Like a Judge? What Should I Bring to the Mediation? What Should I Wear to the Mediation? How Long Will the Mediation Last?

By Kent B. Scott and Cody W. Wilson

Is the Mediator Like a Judge?

Clients who are learning about mediation for the first time invariably want to know whether the mediator can adversely affect their core interests in the dispute. The answer is “no” because the mediator must be neutral and remain so throughout the proceedings. The mediator is not a decision maker and has no authority to require the parties to settle. The decision to settle belongs only to the parties.

While judges are supposed to be impartial, they are decision makers. They decide motions and like juries can decide who is right and who is wrong on the merits. This is not the case in mediation. The mediator, even one who takes an evaluative approach, is strictly a facilitator. What mediators do is assist the parties to explore and reconcile their differences.

What Should I Bring to the Mediation?

Essential items to bring are the documents provided to the mediator and exchanged with the other side (i.e., the mediation and position statements, and documents provided to the adversary), as well as all information requested by the mediator.

Optional items should be determined in a discussion with counsel. These could include pleadings, motions, expert reports filed in the case, and charts or time lines that help illustrate key points when making the opening statement or in private meetings with the mediator.

What Should I Wear to the Mediation?

Mediation is informal so the parties can wear comfortable business attire. Mediation is not the place to be offensive. For example, if the adversary in the mediation is the chairman of the Republican Party, the client should not wear a tie with a donkey on it.

How Long Will the Mediation Last?

The length of the mediation is important, not only because of cost, but because all necessary participants, including the decision makers for both sides, must be at the mediation for as long as it lasts. The length depends on the complexity of the dispute and how interested both sides are in reaching a settlement. The majority of two-party mediations are completed in eight hours or less.

More complex disputes can take more than one day. They can be scheduled for the convenience of the parties over the course of several consecutive days or several days during consecutive weeks.

There is no magical length of time in which to conduct a successful mediation. It takes the time necessary for the parties to agree that they have interests in common and that they can satisfy each other’s needs without sacrificing interests that are important to them. However, it is vital that counsel and client commit the time and effort to give the mediation process time to succeed.

Part IX of this series will discuss what happens during mediation. Stay tuned.

[Ed. note: the contents of this post were first published on a different form in the May/July 2008 Edition of the AAA Dispute Resolution Journal.]

Kent B. Scott is a shareholder in the law firm of Babcock Scott & Babcock in Salt Lake City whose practice focuses on the prevention and resolution of construction disputes. As a mediator and arbitrator, Mr. Scott currently serves on the AAA’s panel of mediators and the AAA’s Large Complex Construction Case Panel. He also serves on the arbitration and mediation panels for the U.S. District Courts (District of Utah), State District Court (Utah) and Utah Dispute Resolution. Mr. Scott is a founding member of the Dispute Resolution Section of the Utah Bar and a Trustee for the Utah Council on Conflict Resolution.

Cody W. Wilson is an associate in the law firm of Babcock Scott & Babcock, concentrating his practice in the area of construction law, is licensed in all courts in the State of Utah, the U.S. District Court of Utah, the 10th Circuit Court of Appeals, the U.S. Court of Federal Claims and is a member of the ABA Forum on the Construction Industry. They can be reached at kent@babcockscott.com and cody@babcockscott.com.