International Business Lawyer, Business Attorney, Fukuda Law Firm, San Francisco, California

Mediation Challenges - Environmental Site Inspections

Mediation venues comprise a wide variety of environments. This variety of locations often presents challenges that do not exist in normal mediation cases.

Mediation typically occurs in neutral and private settings such as a mediator's offices. However, it is sometimes essential for a mediation session to occur in a public setting. Site inspections may occur in construction and real estate cases. These locations may reduce a party's security and distractions may complicate the negotiation process.

A mediation setting may be in the offices of one of the attorneys. This setting may be chosen because the parties decide that it is more efficient for the mediator to travel than the parties. For example, if the mediator is from out of town or there are many large exhibits, gathering at one of the attorney's office may be desirable.

Each side needs a caucus room that is private and completely secure. The visiting party must have complete privacy and also minimal interaction with office occupants.

The mediator should control the environment in order to maximize privacy and security. Both sides need complete privacy and security. Distractions and interruptions must be avoided.

The negotiators must stay completely focused in order for the mediation to be successful. Distractions hinder the process and all parties should maintain their undivided attention to their position.

The mediator must maintain complete neutrality during the entire mediation process. The mediator must be perceived as a completely impartial party.
When a mediation is held at one of the party's locations, this can cause serious complications to the negotiation. A neutral location is the desired venue. However, if no reasonable alterative exists, ground rules for the mediation should be discussed and agreed upon between the mediator and both sides prior to the mediation. Appropriate measures should be taken to minimize negative impact on the privacy of the participants.

Site Inspections
A site inspection is quite valuable to the mediation effort, particularly if the mediator has technical expertise or if any of the attorneys or parties have not conducted an inspection. On the other hand, a site inspection may cause hostility between parties or counsel.

It is important for the parties to understand the purpose of the site inspection. The inspection is only one step in the mediation process and is not a decision-making step. The parties should stay open-minded during the inspection.

Each side should discuss the purpose and time to be set aside for a site inspection with the mediator before including a site inspection in the mediation. For example, a site inspection may be used purely for fact finding or may be used for negotiation.

The timing of the site inspection should be considered. It may be less productive to hold site inspections at the beginning of the mediation. Instead, the start should focus upon the purpose of the mediation. The ground rules for the mediation should be worked out. In many cases, the parties may agree that a site inspection is not essential.

The mediator should travel to the site via neutral means. It is important for the parties to avoid the temptation to impress the mediator.

At the site, the parties should assemble prior to the inspection. It is critical that neither side make an ex parte presentation to the mediator because that will have negative impact on the perception of neutrality. Expert witnesses may be present. Although they may offer valuable insight, experts should not control the site inspection.

All parties should have the opportunity to make comments in the presence of all interested parties, unless observations are reserved for the return to the negotiating venue.

Outside influences during the site inspection may have a negative effect on the outcome. For example, if persons who are not part of the mediation make commentary, this may negatively impact the mediation by diverting attention to irrelevant issues.

Summary
It is important to use the information from the site inspection efficiently during the negotiating session. The value of a site inspection should be evaluated prior to the inspection.

A successful mediation should provide flexibility to accommodate the negotiating needs of the particular case and all parties. Each location of the mediation can present concerns in the process. The negotiating venue may present a negotiating device. For example, in a tense negotiation, it may be helpful for the mediator to bring a tone of levity to the mediation. This may reduce tension levels that in turn may provide an opportunity for the parties to reach an amicable settlement.