Dispute Resolution Articles

Mediation: Confidentiality and Privilege
By: Judy Shopp
The Gatto case is narrow and easily distinguishable so the protections of confidentiality and privilege granted in mediation remain protected

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To Caucus or Not To Caucus That is the Question
By: Laurie Israel
Caucusing, where a mediator meets with each party to the mediation separately, can be useful in many mediation contexts; however, it also poses a risk to the parties perception of the mediators neutrality. In addition, caucusing can detract from the transformative process mediation typically seeks to produce in the relationship between the parties. Laurie Israel discusses these and other detriments that can result from caucusing in her article To Caucus or Not To Caucus That is the Question.

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Whats It All About? Finding the Appropriate Problem Definition in Mediation
By: Leonard L. Riskin and Nancy A. Welsh
Most parties come to mediation with a multi-dimensional conflict that cannot be fully defined by a pure litigation analysis. In order for an attorney or mediator to define the conflict accurately, he needs to understand the interests of the parties completely, and be able to identify the issues that exist beyond those that would be addressed in litigation. For an attorney, identifying the interests at sake in the conflict will help the attorney achieve a more satisfactory result for his client. For a mediator, understanding the underlying issues of the conflict will help the mediator structure the process to address what each party considers important, thereby increasing the opportunity for a successful mediation experience. Leonard Riskin and Nancy Welsh have compiled a list of questions and other things to consider in identifying these underlying interests that would be useful for both attorneys and mediators in preparing for mediation. 

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For a fuller discussion on this topic, here is the longer article from which the previous article was written:
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Mediating in the Appellate Court
By Mark D. DeBofsky
You have just won a huge, and somewhatunexpected, verdict after a hard-fought month-long trial. Your client is thrilled, and you have already taken the trial team out for a festive victory lunch. But, within days, the notice of appeal arrives on your desk. And not long after, the appellate court orders, or your adversary requests, that the parties engage in mediation. What do you do next?

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"I believe that using the term 'mediation' as a 'catch all' phrase confuses consumers and practitioners and creates a situation where practitioners who mediate may also think they are qualified to facilitate."

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