Settlement: A Compass for Mediators in Difficult Situations

Private mediation has become a fixed feature of the litigation cycle, driven by crowded court dockets, the rising costs of trial, and encouragement from the judiciary. Ironically, even with instant communication tools, attorneys often engage in fewer direct discussions. It is not atypical for attorneys to appear at status conferences or evidentiary hearings without any prior dialogue with opposing counsel, let alone settlement discussions. Mediation provides a platform for parties to engage in meaningful communication under the mediator's auspices, often resolving disputes that have persisted for years in just a day or two.1 Even when a settlement is not reached during mediation, the process often lays the groundwork for resolution later. In this environment, the mediator plays a pivotal role not only as a neutral party but also as an architect of dialogue.

For mediation to thrive as a quasi-institutional feature of the litigation landscape, it is essential that mediators adhere to ethical principles. While private mediation ethics are not yet extensively codified in California, certain widely accepted ethical principles governing mediation appear in mediation literature:

1. Impartiality, competence, and neutrality: Mediators must be competent, remain unbiased, and not favor any party.2
2. Confidentiality: Mediation proceedings are protected from disclosure.3
3. Self-determination: Parties must retain control over their decisions without coercion,4 and mediators should refrain from providing legal advice.5
4. Informed consent: Parties should understand the mediation process and its implications.6

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