Mediation & Dispute Resolution

David H. Henard, Ph.D., author of Negotiation: An Artful Science, is lead mediator and Principal of Pro Mediations, LLC based in Raleigh, NC. He has a successful business background with multiple consumer products divisions of Altria including Kraft Foods USA, General Foods, and Oscar Mayer Foods where he held numerous R&D, sales, and marketing positions. Dr. Henard is currently Professor of Business Management/Marketing at North Carolina State University's Poole College of Management. 

Dr. Henard holds professional certification in mediation from the the NC Superior Court in addition to certifications in negotiation from Harvard Law School’s Program on Negotiation and the University of Southern California’s Marshall School of Business. He has a B.A. from the University of Tennessee, an M.B.A. from Emory University, and a Ph.D. from Texas A&M University.

He has a 30+ year proven track record of success in finding creative and effective solutions to a host of problematic situations. Henard is available to mediate disputes that relate to business issues, civil disagreements, higher education, or amicable divorce settlements. He is a strong proponent of the mediation process as a more affordable, less emotionally distressing dispute resolution alternative to litigation in court.

While mediated settlement conferences (MSC) are common occurrences for many attorneys, for the individual parties to a dispute it is frequently the first (and often the only) time that they have been involved in a mediated conference. For this reason, the mediation process is presented here as an overview so that participants can have some advance knowledge of what to expect during the conference. Of course, the actual mediator will explain the process in greater detail at the onset of the interaction.

Phase I. The Introductions

The first thing that happens in most mediated settlement conferences is that the mediator asks everyone to introduce themselves to the group. This is usually a short process at which point the mediator will introduce him/herself and commence with the mediation.

Phase II. The Overview

At this early point in the conference, the mediator will discuss several key facets of the mediation process. These include, but are not limited to, a self-introduction, the role of the mediator, the conference agenda, the role of the parties and any counsel, reducing the conference results to writing, the fees involved, and beginning the opening presentations by each party and/or their legal representatives.

Phase III. General Sessions

Nearly all mediated settlement conferences begin with what is called a general session. In a general session, all parties to a dispute in addition to any representative counsel present meet face-to-face. This is when the introductions occur and is usually the time when each party (and/or their attorney) to a dispute gets the opportunity to explain their side of the issue. While this occurs, the other individual(s) are encouraged to politely listen as both sides to the dispute are given the opportunity to speak while still in the presence of the other party. At times, an attorney will advise a client to remain silent during a general session and allow the attorney to speak for them. This is common and should not be considered impolite by the opposing party. While some mediated conferences are held entirely in general session, it is typical for the conference to move to a private session phase, which is described below.

Phase IV. Private Sessions

At the conclusion of the general session, the two parties will typically move to separate rooms where private sessions are then conducted. While the mediator will work with each party to move the conference toward a mutually agreeable conclusion, the two parties to the conflict do not directly communicate with each other while in private sessions. This allows for each party to have confidential discussions with the mediator and any representative counsel present. The mediator typically moves between the two rooms, maintaining confidentiality with each party, and communicates what each party would like to communicate to the other individual(s). There are times when private sessions return to a general session or when representative attorneys conduct a general session with the parties absent. At other times, there is not a return to general session. The process between general and private sessions is at the discretion of the two parties.

Phase V. Reducing Agreements to Writing

Upon reaching a mutually agreeable solution to the issue(s), mediated settlement conference rules dictate that the agreement be reduced to writing and signed by all pertinent parties. This agreement can be written by the mediator or the attorneys present in the mediation conference. It is important that the written agreement be complete and cover all relevant elements of the solution. It is not necessary, however, that the written agreement comprise all of the written documentation necessary to solve any pending lawsuit. This can be completed at a later time, if the situation dictates. Some agreements (e.g., amicable divorce conference) might require an attorney to file legal documents with the appropriate authorities after the mediated settlement conference concludes.

Phase VI. Payment to the Mediator

Mediated settlement conference rules clearly state that the mediator is in charge of the conference ending point, be it a settlement or an impasse. Upon conclusion of the conference, the mediator will present each party with a statement of fees (which are evenly split between parties). These fees should be paid immediately via cash, check, or credit card. There can be exceptions to this rule depending upon unique conference circumstances (e.g., recess v. impasse). Each party will receive an invoice clearly delineating the mediator’s charges.

The following standards of conduct for mediated settlement conferences have been adopted by Pro Mediations, LLC mediators in accordance with standards of conduct set forth by The American Arbitration Association, the North Carolina Dispute Resolution Commission, the Association for Conflict Resolution, and the American Bar Association. Clients of Pro Mediations, LLC can expect the following standards to be followed in all mediated settlement conferences.

Standard I. Self-determination

Our mediators shall conduct a mediated settlement conference based on the principle of party self-determination. This is the act of coming to a voluntary and uncoerced decision whereby each party to the conference makes free and informed choices as to processes and outcomes. Our mediators may assist parties in making informed and thoughtful decisions, but he/she is obligated to leave the parties in full responsibility for deciding whether and on what terms to resolve their dispute.

Standard II. Consent

Our mediators shall make every reasonable effort to ensure that each party understands the mediated settlement conference process, the role of the mediator, and each party’s options within the process. 

Standard III. Impartiality

Our mediators shall decline a mediated settlement conference if he/she cannot conduct it in an impartial manner. Impartiality means freedom from favoritism, bias, or prejudice. Our mediators shall not act with partiality toward any individual based upon any participant’s personal characteristics, background, values and beliefs, performance at a mediation, or for any other reason.

Standard IV. Conflicts of Interest

Our mediators shall avoid a conflict of interest or the appearance of a conflict of interest before, during, and after a mediated settlement conference. He/she shall make a reasonable inquiry to determine whether there are any facts that a reasonable individual would consider likely to create a potential or actual conflict of interest for a mediator. Subsequent to a mediated settlement conference, our mediators shall not establish a relationship with any of the participants in any matter that would raise questions about the integrity of the previous mediation.

Standard V. Competence

Our mediators shall mediate only when he/she has the necessary competence to satisfy the reasonable expectations of the parties. He/she should regularly attend educational programs and related activities to maintain and enhance his/her knowledge and skills related to mediation.

Standard VI. Confidentiality

Our mediators shall maintain the confidentiality of all information obtained in a mediated settlement conference, unless otherwise agreed to by the parties or as required by applicable law. Our mediators shall not disclose, directly or indirectly, to any non-participant information about what the parties said or how the parties acted in the mediated settlement conference. Our mediators are bound by the rules of conduct outlined by NC G.S. 7A-38.1 and Supreme Court Rules unless otherwise directed by the parties or applicable law.

Standard VII. Quality of the Process

Our mediators shall conduct a mediated settlement conference in accordance with these Standards and in a manner that promotes diligence, timeliness, safety, party participation, procedural fairness, and mutual respect among all participants.

Standard VIII. Fees and Charges

Our mediators shall provide each party, or each party’s representative(s), complete and accurate information about mediation fees, expenses, and any other actual or potential charges that might be incurred in connection with a mediated settlement conference. Payment terms for participants shall be clearly and transparently presented to all relevant parties prior to any mediation and shall be agreed to by all parties before commencing a mediated settlement conference. Our mediators shall make every effort to minimize costs to only those deemed essential to the mediation process.

A mediated settlement conference (MSC) is an opportunity to negotiate the settlement of a lawsuit or disagreement without the risk, expense, and frustration associated with going to trial. It is important to remember that in an MSC, the parties to the dispute are there to negotiate, not litigate. Therefore, individuals should be mindful that they are there to persuade their counterpart(s), not coerce them.

In order for an MSC to be effective and lead to a mutually agreeable outcome, all parties need to participate in joint problem-solving. By working together – as opposed to competing – the MSC is more likely to reach a successful conclusion.

Try to focus on the problem at hand, not the people. This is easier said than done in many instances, but it will be the emphasis of your mediator. Regardless of what has happened in the past, the purpose of an MSC should be on what will happen moving forward.

Prior to the MSC, all parties to the dispute should conduct a detailed risk analysis, which covers a range of expected settlement (if money is involved), probability of success/failure at trial, opportunity costs of non-settlement, and the best alternative to a non-settlement. This should produce a detailed, yet flexible, negotiation range for all parties and increase the odds of a successful (and less expensive) MSC.

Don’t be afraid to introduce innovative or creative ideas that might appeal to the other party and could resolve a dispute. Try not to be solely focused on the financial aspects of the dispute. Introduce options for action so that the other party has decision-making flexibility. This can also induce creativity by the other party. Often to get something, you must be willing to give something. 

Acknowledge your vulnerabilities and don’t be afraid to point out the vulnerabilities of your counterpart(s). An MSC is a good place to be honest with your counterpart, letting them know exactly what your expectations are and what will or will not be satisfactory to you. Obfuscation of information is more common in litigation. Don’t be afraid to share your true thoughts and intentions with your counterpart(s).

In complex cases, your argument can be augmented by the presentation of charts, reports, photographs, or other visual elements. Humans are a visual species and the use of optics/graphics can be very persuasive.

In issues of liability, be sure to supply your counterpart(s) with adequate information with which to make an informed opinion regarding the merits of the case. Participants will often see an MSC result in an impasse simply because one side has not supplied the other with sufficient information prior to (or during) the MSC. This usually leads to litigation in court that could have been avoided with better preparation and communication between the parties.

Regardless of your side of the dispute, acknowledging the injury, hurt, or suffering of the other party goes a long way towards an MSC settlement. An apology and/or acknowledgement of pain often proves beneficial to the settlement process. Again, be hard on the problems but soft on the people. 

Parties to an MSC should remain mindful that the mediator is an advocate for the mediation process and not an advocate for any particular party. He/she will not direct the parties as to how to negotiate and will only serve in a facilitative manner per the statutes, codes, and standards of the mediation profession. 

While the mediator is free to offer opinions and suggestions (when explicitly asked by a party to the conference) for producing a settlement, it is the individuals involved in the dispute that are in charge of the MSC process and its outcomes. The mediator is in charge of officially beginning and ending the MSC as well as offering general process guidelines, but the parties to the dispute are the ultimate decision-makers.

NOTE: The preceding is adapted and truncated from Presenting Your Case in Mediation by Robert A. Phillips of Mediation, Inc.

Per Standard VIII of the mediator’s Standards of Conduct, all mediator-related fees born by the mediated conference participants shall be complete, accurate, and minimized to the greatest extent possible. Any court ordered mediated settlement conference in North Carolina will have fees determined by G.S. 7A-38.1. Below, is the general fee structure for all other mediated conferences. 

NOTE: All fees are divided evenly between the number of parties in the mediation. For example, a 2-party conference would be a 50%-50% split of the fees noted below.

One-time Administrative fee:    $125

Hourly fee (2 hour minimum):  $150

Travel & Lodging fees:  By agreement as necessary

Cancelation fee:  Any scheduled mediated settlement conference that is canceled within 21 days of the scheduled date is subject to a fee equal to the Administrative fee and two hours of mediation ($475). This fee is divided evenly between the number of parties in the mediation unless by other agreement.

There are multiple options for training and certification in the Art & Science of Negotiation available from Pro Mediations, LLC. 

All training is conducted and supervised by an instructor certified in negotiation by Harvard Law School’s Program on Negotiation.

Each seminar is highly interactive with minimized lecture time. Seminars are taught in an Executive Education format with each participant personally conducting multiple negotiation and/or mediation scenarios with other course participants.

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