Neutral Corner: John Van Winkle

Two recent articles suggest that in certain circumstances, mediation may be advantageous to go against the conventional wisdom of the anchoring effect of making the first offer.

The fact that the other four ADR methods have seldom — if ever — been used has led some stakeholders and commentators to suggest that the rules should be amended to eliminate the four other methods, leaving only mediation governed by the rules.

Attorneys participating in mediations in Indiana may want to follow the appellate course of two recent federal court orders.

It is axiomatic that for mediation to meet its promise, for the process to provide the setting for mediators and lawyers to assist parties in finding mutually acceptable, interest-based solutions to complex disputes, those parties must be present.

It is submitted that the current reluctance of parties to attend mediation sessions in person has had and will continue to have significant and long-lasting negative impacts on the efficacy of the mediation process.

Mediation is a process, starting before and extending beyond the traditional meeting or “session.”

There was universal consensus when mediation was introduced in the early 1990s that mediations should be “confidential.” The ADR rules adopted in Indiana and most other states, however, failed to set forth clear standards and guidelines for courts and mediation participants faced with issues of confidentiality of mediation communications.

The recent trend toward only “meet and greet” joint sessions in mediation presents a serious challenge to lawyers in discharging one of their primary mediation functions: to advocate on behalf of their clients to get the best settlement option on the table.