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Published Articles by David Balovich

Published in: Creditworhty News
Date: 3/13/98

The final step in the mediation process is "closure".

The conclusion of every mediation hearing includes a few words from the mediator acknowledging the efforts of the parties. Often emotions are high at the end of a session, even euphoric. At other times the parties feel tired and hopeless. Regardless, the mediator has responsibility to acknowledge the efforts of the parties and continue to provide encouragement in resolving their dispute.


The mediator compliments the parties on their determination to work through the situation. The parties are complimented for their willingness to seek mediation and informed that if any problems develop they should contact the mediator.


The mediator thanks them for meeting and trying to resolve their dispute through the mediation process. The parties are still complimented for their efforts even though no agreement was reached. The mediator points out any positive aspects which were developed during mediation, such as increased understanding between the parties.

A large number of settlements occur after not during mediation. This is credited to a process commonly referred to as incubation. During the incubation process the parties are thinking subconsciously about the points brought out during mediation and in so doing come to the realization that there is a way to resolve their differences.

Sometimes the mediator is recalled to draft the agreement or the parties agree informally or draw up their own agreement.


In the last ten years mediation has become a growth industry and it seems at times that everyone is practicing mediation. In 1988 Martindale-Hubbles' Directory of Mediators had less then 200 pages of listings. Today there are over 950 pages.

Being an attorney is not a requirement of mediation and in many cases it is prudent not to engage the services of an attorney/mediator. The reason is that procedures of law do not apply in mediation. There are no rules of evidence and everything is admissible. Many attorneys who mediate have difficulty separating the common sense rules of mediation from legal procedures. That is not to say that attorneys do not make good mediators. I know of several attorneys who are excellent mediators but they can distinguish the difference between mediation and arbitration.

The mediator chosen should have been certified by an agency authorized by the state. This certification identifies that the mediator has successfully completed the required training hours to mediate. In addition, the mediator should be able to provide references. Mediation is confidential and therefore it should not be expected that the references be of previous parties. However, the mediator should belong to an association or be a member of the state bar where references can be authenticated. Many state bar associations have associate memberships for mediators, para-legals, court clerks, etc. Many states, counties and professional associations provide a mediator referral service. In addition Martindale-Hubble publishes a directory of mediators.

Most mediators whether they are attorneys or non-attorneys specialize in a particular area. It is best to choose a mediator who is familiar with your business or industry. Less time is spent educating the mediator in practices or procedures unique to the dispute. Remember, the mediator make no decisions but is a neutral whose job is to find common ground whereby the parties can find solutions and come to agreement.

I wish you well.

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