Pro Bono Attorneys Deskbook
and pro bono clients
The Use of Mediation
The process of
mediation benefits the clients and their attorneys by providing a
confidential setting in order to discuss all issues and interests of
both sides to a dispute without the formal rules of a courtroom
Supreme Court describes mediation as "a process in which a neutral third
party facilitates communications between the parties to promote
Rule 17.01. The mediator approaches the issues using a structured
step-by-step approach to problem solving. Mediation can provide a
neutral and protected environment to help the parties explore and
understand their interests, needs, risks and options, thereby working
out an agreement that suits both participants in the conflict.
Mediation can be
used for one or more issues of the dispute or can be used to establish a
complete settlement of all issues. Also mediation may be used at any
point in the proceedings of a settlement negotiation or of a litigated
case, such as a motion to compel discovery. Furthermore, mediation works
well even before a conflict exists in order to negotiate any type of
future transaction, such as with subcontractors on a large construction
Mediation can be
Both participants in the conflict decide the
resolution. When a case is before a jury or judge, restrictions
occur regarding the introduction of evidence. If one side does not
like the imposed outcome, he or she can appeal or may in practice
not fully comply with the court's decision. Rather than rehash the
same old fight, participants in mediation are invested in the
resolution because they helped fashion it.
needs and interests are addressed rather than following general
standards used by the Court that may not fit everyone's
Participants can learn the skills necessary for resolving
The parties do
not have to get along with each other in order to use mediation.
The process is for people in conflict. Being friendly is not a necessary
prerequisite for participation in mediation. However, mediation may not
be appropriate for a party not willing to be honest, is mentally
incompetent, is physically abusive or has fear of physical abuse.
At any time during
the mediation, participants may consult with other professionals
in order to discuss options. Whenever resolution is accomplished, the
participants will be encouraged to seek the advice of their attorney to
review the draft of any proposed agreement. The mediator does not offer
legal advice or make the decisions for the participants.
Confidentiality: Clients and their attorneys should not fear what might be discussed
during a mediation session, with some specific exceptions, such as
unreported child abuse or threats of serious harm. Missouri law at
Section 435.014, Revised Statutes of Missouri protects the
confidentiality of the mediation process. However, this law requires a
written agreement to mediate between the parties. See attached a
Agreement to Mediate. Court-ordered mediation pursuant to
Rule 17 for
civil cases in general and pursuant to
Rule 88 for
family law cases also protect the mediation process as confidential
guarantee instant settlements. However, because a significant amount of
communication typically occurs during mediation sessions, the parties
may generate options learned in mediation that become the basis for a
later settlement. Rather than a rushed negotiated settlement on the
courthouse steps or a court-imposed order unsatisfactory to both sides,
mediation can offer both the client and the attorney opportunities to
maximize satisfactory and durable resolutions.
Resources for Further Study
Mediation Program (Mediation Achieving Results
for Children) provides no cost mediation services for parents to
cooperatively resolve disputes about custody, access, child support, and
parenting plan issues. More information at
the website or
at its toll free number, (800) 595-9750.
Missouri Mediators has information about the mediation process, how
to select a mediator and how to use mediation effectively.
Missouri Supreme Court Rule 17
Missouri Supreme Court Rule
Local Court may have Alternative Dispute Resolution coordinator.
Mediation Survivorís Handbook, by Peg Nichols [ ISBN 0-9778711-0-X]
Model Standards of Conduct for Mediators.