MEDIATION: Experts at Mediations

Posted by on Feb 12, 2012 in Uncategorized | 0 comments

Experts at Mediations

Why not?
Posted by ADMIN February 6, 2012

I recently attended a seminar put on by members of a specialized practice within the Arizona State Bar. While learning a lot about the area of practice, I was surprised to learn that among the mediators in this area all absolutely refused to allow the parties’ experts to attend or participate in the mediation. At least those that spoke or voiced opinions held this opinion.

Afterwards at a break and later at a mediation in this area, I developed the discussion to confirm what I was hearing. Once again it was made very clear: no experts are present. The explanation given: the experts are too involved with their opinions or their egos are too tied up with their opinions.

Question: whether the expert is present or not, will not the mediator have to deal with the expert’s opinion? Is this a fear among attorney-mediators that the expert will have a reasoned/ logical disagreement with the mediator? Is the mediator substituting her/his opinion for that of an expert? Is that the role of a mediator or more that of a neutral evaluator working under the guise or disguise of mediator?

Why Fear A Joint Session?

Posted by on Feb 7, 2012 in Uncategorized | 0 comments


Observations of an Arizona Mediator

After nearly 4 years serving as an Arizona mediator, I realized that starting a mediation with a joint session involving parties and counsel will be a rare event. The response to my notification that I plan on starting in joint session is almost universally the same from all counsel: “it will only make matters worse” or  “the parties are too hostile.”  The cases to which I refer are not divorce cases nor are they cases where death or injury is involved.  The cases are commercial disputes among business men and women.

Is this a problem arising from the dispute between the clients or is it a result of the “hard-ball litigation” culture among Arizona attorneyss? My cursory research indicates that it reaction is not an Arizona phenomenon. The instructors for the advanced mediation programs at the Strauss Institute at Pepperdine University School of Law have commented that it appears to be a position among participants in mediations in other jurisdictions that has gained strength over the last few years.

Why avoid joint sessions?  Is it a counsel’s fear of losing of control, or is it it an increasing effort by cients as they become more mediation savvy? My initial reaction is that counsel are losing out on a unique opportunity to influence the outcome of the mediation or trial.  By this, I am not recommending an aggressive approach to dispute mediation. The joint session is a pivotal moment to develop a more in-depth understanding of the opposing party, opposing counsel and the nuances of the lawsuit.


Posted by on Jan 19, 2012 in Uncategorized | 0 comments