By: Stephen P. Lagoy
At its September 15 meeting, the Board of Directors of CCBA approved the creation and implementation of a voluntary mediation program to be administered by the Bar Association. The program design is the product of CCBA’s Alternative Dispute Resolution Section, the members of which worked on the concept for the past year and a half. President Judge MacElree has been strongly supportive of the Section’s efforts and has appointed Judge Cody to serve as the Court’s liason to the program. It is expected to launch in January, 2011.
The stated purpose of the Mediation Program is “to provide an efficient and less adversarial means of resolving disputes than litigation.” All types of disputes (except criminal) are eligible for submission to the program. The major program components are the creation of a panel of qualified mediators and the implementation of an effective procedure for delivering mediation services.
Minimum requirements for panel members have been established. In addition to requiring that all program mediators be attorneys with at least five years experience, CCBA membership, and professional liability insurance, mediator requirements include at least forty classroom hours of basic mediation skills training and actual hands-on experience conducting mediations. The experience requirement can be satisfied by having conducted at least fifteen mediations with at least twenty hours of actual mediation experience. Alternatively, the experience requirement can be satisfied by observing at least five mediations conducted by an experienced mediator and having conducted at least five mediations, together with post-mediation consultations with an experienced mediator. “Experienced mediator” is defined as a person who has received at least forty hours of classroom education in basic mediation skills and who has conducted mediations aggregating at least two hundred hours in duration.
The mediation procedure will be administered by the staff of the CCBA. Parties desiring to submit a dispute to mediation through the program will complete and sign a Mediation Agreement and submit it to the Bar Association. The Mediation Agreement will address a number of issues including the confidentiality of statements made during the course of the mediation, immunity of the mediator from suit or subpoena, and the release and indemnification of the mediator with respect to any act or omission in connection with the mediation. A fee of Seven Hundred Fifty ($750.00) Dollars must accompany the agreement. One Hundred Fifty ($150.00) Dollars of the fee is a non-refundable administration fee for the CCBA. The remainder of the fee represents payment for the mediator’s initial review, preparation and up to three hours of mediation.
Once the Mediation Agreement has been submitted, a mediator will be assigned by the CCBA, which will maintain a revolving mediator list. The case will be assigned to the first individual on the list who has not opted out of the type of case desired to be mediated. The assigned mediator will be deemed to be acceptable to the parties unless, within seven days of assignment, any party objects to the appointment of the mediator or all if the parties agree to the appointment of another person from the mediator list. An individual who has been selected will then move to the bottom of the revolving mediator list. Procedures are also in place for addressing potential conflicts of interest and for refunding the mediation fee in cases in which the parties decide not to proceed with the mediation.
The mediator, once assigned, will assume responsibility for coordinating and scheduling the mediation. Because disputes (and the mediators who are called upon to help resolve them) come in all shapes and sizes, the program leaves to the mediator responsibility for explaining the process to the parties and working with them to establish the mediation ground rules, determining what information must be exchanged, identifying the persons whose participation in the mediation process is necessary, and setting the requirements for mediation statements or memoranda. The mediator will also be responsible for scheduling the mediation itself.
Elsewhere in this issue you will read about the many advantages of mediation in the resolution of disputes. The primary goal of CCBA’s Mediation Program is to make the benefits of mediation, conducted by qualified mediators, more accessible to the bar and the public.
Read more articles by Stephen P. Lagoy in the Unruh, Turner, Burke & Frees Mediation Blog