Mediation Procedures Summary of Changes

AAA Mediation Procedures Summary of Changes

Effective September 1, 2007

The American Arbitration Association recently undertook a review of its Mediation Procedures in order to bring the procedures in line with current practices in mediation as they have developed in recent years. Below is a summary of the significant changes made to the procedures.

M-1. Agreement of Parties

Text was added to indicate that by agreeing to mediate under the auspices of the AAA or under its mediation procedures, the parties designate the AAA as the administrator of their mediation.

Text was added to indicate parties by mutual agreement may vary any part of the procedures including, but not limited to, agreeing to conduct the mediation via telephone or other electronic or technical means.

M-2. Initiation of Mediation

Reference to the $325 nonrefundable case set-up fee was deleted. See new section M-17 Cost of the Mediation.

Text was added to indicate parties could file requests for mediation with any of the AAA's regional offices or case management centers via telephone, email, regular mail or fax and that requests for mediation may also be filed online via WebFile at www.adr.org.

Text was added to specify what information the filing party must provide.

The phrase "join in a submission to mediation" was changed to "participate in 'mediation by voluntary submission.'"

M-3. Requests for Mediation

Text was revised and has been incorporated into M-2.

Section M-3 is now titled "Representation", formerly Section M-7, and the text "Subject to any applicable law" was added to the beginning of the first sentence.

M-4. Appointment of the Mediator

Text was added to direct parties to the online profiles of AAA mediators when searching for a mediator.

Text was added to specify that if the parties have not agreed to the appointment of a mediator and have not provided any other method of appointment, the AAA will send to each party a list of mediators from the AAA's Panel of Mediators.

Text was also added to specify that if the parties fail to agree on any of the mediators listed, or if acceptable mediators are unable to serve, or if for any other reason the appointment cannot be made from the submitted list, the AAA shall have the authority to make the appointment from among other members of the Panel of Mediators without the submission of additional lists.

M-5. Qualifications of the Mediator

Section was renamed to "Mediator's Impartiality and Duty to Disclose"

Text was added stating that AAA mediators are required to abide by the Model Standards of Conduct for Mediators in effect at the time a mediator is appointed to a case. Text was also added to note that where there is a conflict between the Model Standards and any provision of the AAA Mediation Procedures, the AAA Mediation Procedures shall govern.

Text was added to state that AAA mediators are required to 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 the mediator.

Text was added to require AAA mediators to include in information to be disclosed any circumstances that would prevent a resolution of the parties' dispute within the time-frame desired by the parties.

In the event a disclosure results in the mediator's removal, the text now says "the mediator shall be replaced" rather than "the AAA will appoint another mediator." This change reflects the revision made to Section M-6.

M-6. Vacancies

The phrase, "in accordance with section M-4" was added to the end of this section.

M-7. Representation

"Representation" is now section M-3 (see above).

M-7 is now titled "Duties and Responsibilities of the Mediator". The text of the new M-7 reads as follows:

The mediator shall conduct the mediation based on the principle of party self-determination. Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome.
The mediator is authorized to conduct separate or ex parte meetings and other communications with the parties and/or their representatives, before, during, and after any scheduled mediation conference. Such communications may be conducted via telephone, in writing, via email, online, in person or otherwise.
The parties are encouraged to exchange all documents pertinent to the relief requested. The mediator may request the exchange of memoranda on issues, including the underlying interests and the history of the parties' negotiations. Information that a party wishes to keep confidential may be sent to the mediator, as necessary, in a separate communication with the mediator.
The mediator does not have the authority to impose a settlement on the parties but will attempt to help them reach a satisfactory resolution of their dispute. Subject to the discretion of the mediator, the mediator may make oral or written recommendations for settlement to a party privately or, if the parties agree, to all parties jointly.
In the event a complete settlement of all or some issues in dispute is not achieved within the scheduled mediation session(s), the mediator may continue to communicate with the parties, for a period of time, in an ongoing effort to facilitate a complete settlement.
The mediator is not a legal representative of any party and has no fiduciary duty to any party.

M-8. Date, Time, and Place of Mediation

This section has been deleted since these aspects of a mediation are normally arranged in the due course of the process.

M-8 is now titled "Responsibilities of the Parties" which is a new addition to the procedures. The text of the new M-8 reads as follows:

The parties shall ensure that appropriate representatives of each party, having authority to consummate a settlement, attend the mediation conference.

Prior to and during the scheduled mediation conference session(s) the parties and their representatives shall, as appropriate to each party's circumstances, exercise their best efforts to prepare for and engage in a meaningful and productive mediation.

M-9. Identification of Matters in Dispute

This section was deleted and the provision was reworded and incorporated into the new M-7 as subparagraph (iii) (see above).

M-9 is now titled "Privacy", which was formerly section M-11, and now includes the phrase "and related mediation communications" in the first sentence.

M-10. Authority of the Mediator

Provisions of this section were moved and deleted as follows: The provisions in the first paragraph were incorporated into the new M-7 as subparagraphs (ii) and (iv) (see above). The provisions of the second and third paragraphs were deleted. The provision of the fourth paragraph was reworded and incorporated into the new M-12 as subparagraph (ii) (see below).

M-10 is now titled "Confidentiality", which was formally section M-12, and has the following text changes:

The phrases "Subject to applicable law or the parties' agreement," and "other participants (witnesses)" were added to the first sentence in the first paragraph.

The phrase "the following, unless agreed to by the parties or required by applicable law" was added to the third paragraph.

M-11. Privacy

Now section M-9 (see above).

M-11 is now titled "No Stenographic Record", which was formerly section M-13, and has no text changes.

M-12. Confidentiality

Text regarding "Confidentiality" is now section M-10 (see above).

M-12 is now titled "Termination of Mediation", which was formerly section M-14, and has the following text changes:

The phrases "or verbal" and "would no longer contribute to a resolution of the parties' dispute, or" were added to the second paragraph.

The phrase, "or verbal" was added to the third paragraph.

A fourth paragraph, reading as follows, was added:

When there has been no communication between the mediator and any party or party's representative for 21 days following the conclusion of the mediation conference.

M-13. No Stenographic Record

Now section M-11. No text change.

M-13 is now titled, "Exclusions of Liability", which was formerly section M-15, and has the following text change:

The word "error," was inserted between the words "any" and "act".

M-14. Termination of Mediation

Text regarding "Termination" is now section M-12 (see above).

M-14 is now titled "Interpretation and Application of Procedures", which was formerly section M-16, and has no text changes.

M-15. Exclusion of Liability

Text regarding "Exclusion of Liability" is now section M-13 (see above).

M-15 is now titled "Deposits", which is a new section, and reads as follows:

Unless otherwise directed by the mediator, the AAA will require the parties to deposit in advance of the mediation conference such sums of money as it, in consultation with the mediator, deems necessary to cover the costs and expenses of the mediation and shall render an accounting to the parties and return any unexpended balance at the conclusion of the mediation.

M-16. Interpretation and Application of Procedures

Text regarding "Interpretation and Application of the Procedures" is now section M-14 (see above).

M-16 is now titled "Expenses", which was formerly M-17, and the text was rewritten as follows:

All expenses of the mediation, including required traveling and other expenses or charges of the mediator, shall be borne equally by the parties unless they agree otherwise. The expenses of participants for either side shall be paid by the party requesting the attendance of such participants.

M-17. Expenses

Text regarding "Expenses" is now section M-16 (see above).

M-17 is now titled "Cost of the Mediation", which is a new section, and reads as follows:

There is no filing fee to initiate a mediation or a fee to request the AAA to invite parties to mediate.

The cost of mediation is based on the hourly mediation rate published on the mediator's AAA profile. This rate covers both mediator compensation and an allocated portion for the AAA's services. There is a four-hour minimum charge for a mediation conference. Expenses referenced in Section M-16 may also apply.

If a matter submitted for mediation is withdrawn or cancelled or results in a settlement after the agreement to mediate is filed but prior to the mediation conference the cost is $250 plus any mediator time and charges incurred.

The parties will be billed equally for all costs unless they agree otherwise.

If you have questions about mediation costs or services visit our website at www.adr.orgor contact your local AAA office.

ADMINISTRATIVE FEES

This section was deleted and replaced by a new section M-17 titled "Cost of the Mediation" (see above).