Pro Bono Attorneys Deskbook
 Mediation 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 presentation.

The Missouri Supreme Court describes mediation as "a process in which a neutral third party facilitates communications between the parties to promote settlement." 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 project.

Mediation can be successful because:

• 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.

• Specific needs and interests are addressed rather than following general standards used by the Court that may not fit everyone's satisfaction.

• Participants can learn the skills necessary for resolving future disagreements.

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 sample 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 settlement negotiations.

Mediation cannot 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 

1.         MARCH 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.  

2.         Association of Missouri Mediators has information about the mediation process, how to select a mediator and how to use mediation effectively. 

3.         Missouri Supreme Court Rule 17 . 

4.         Missouri Supreme Court Rule 88 . 

5.         Local Court may have Alternative Dispute Resolution coordinator. 

6.         Mediation Survivor’s Handbook, by Peg Nichols [ ISBN 0-9778711-0-X] 

7.         Model Standards of Conduct for Mediators.