Proposed Guidelines

Statements Here and on the Website are Opinions Only

Derived from Individual Mediation Experiences and Do Not Constitute Legal Advice.

Seek a Lawyer for Legal Advice.

Some Protections to Consider in Mediation from Non-Lawyer Individuals Experienced in a Mediation

  1. If at all possible, insist on "no confidentiality" in mediation. Explain fears and concerns using Case law, if possible. Meigs vs Bergman is an excellent example of why no confidentiality must be honored with emphasis on Pleading, "Objection to Mediation". (Links to be added later)

  2. Insist on no more than three to six hours of mediation depending on individual position. Longer hours of mediation only serve to exhaust and confuse. Exhausted and confused individuals cannot make clear and intelligent decisions as required in a negotiation process. As discussed below, details with maximum and minimum acceptance levels need to be determined long prior to mediation.

  3. Bring your own food or eat out for meals. Some foods create a sleepy and sluggish mental environment. Mediators who serve such food should be avoided as such foods create a biased environment.

  4. Do not stay in an environment too hot or too cold such that discomfort can affect thinking.

  5. Question any statement that no one can leave mediation or go to the bathroom or get water or any controlling statement that may create fear, discomfort, or concern. Such environments hinge on control rather than negotiations. Such mediators should be avoided. Any lawyers that condone this action should also be avoided.

  6. Decide on your own or with your lawyer what terms that you are willing to accept and which ones that are not acceptable, write it down on paper and take this with you. At no point should those points be compromised. Pressure of mediation, conditions of mediation, stress levels and those in mediation can impact decisions. You made your decision prior to mediation on the high and low of acceptability for various issues. Do not allow yourself to concede to anything outside of those issues. If your lawyer cannot assist in maintaining the boundaries established prior to mediation, get a new lawyer.

  7. Do not sign anything at mediation unless all topics discussed occurred prior to mediation and fall within your preset boundaries. Do not go into mediation until all terms have been discussed with your lawyer. Do not allow your lawyer to take you into mediation before terms are discussed.

  8. Any new terms or conditions require further thought outside of mediation and prior to commitment. Listen to terms and compromises. Think about making a final decision at a later time. Rushing and pressuring to sign an agreement for any reason can indicate an attempt to hide an issue not evident. Hidden issues can be difficult to fight after a signature on a mediation agreement, although not impossible.

  9. Any attempt at threats or suggestions that this is the last deal requires further consideration as these are pressuring statements. Pressuring occurs when self-interest supersedes client interest.

  10. If pressuring is allowed to occur, request a new mediation with a new mediator and find another lawyer. You are negotiating terms using facts available. A good mediator should be able to present facts without demands, fear mongering, and pressuring.

  11. Your lawyer should not pressure but offer various options, make a recommendation and allow you to choose. Although a lawyer may have your self-interest at heart and believe their way to be the best, you are an adult. You have the right to be treated as an adult by the person whom you are paying. Pressuring in one direction by your lawyer is condescending to you, self-righteous of your lawyer, and such should be told to your lawyer. You hired your lawyer to represent your interests and desires not theirs and not to treat you as a child incapable of understanding options if those options are well laid out by the lawyer. The fact that your lawyer feels that they must pressure you to accept their viewpoint may indicate the lawyer working for themselves and not you. Sometimes a lawyer may create a do or die scenario to convince you to act. Acknowledge this to your lawyer, assess the response, then find another lawyer if the response fails to consider you as an adult capable of making decisions with facts available.

  12. Your lawyer should not pressure you in one direction or another but make a recommendation and accept that you have a right to make your own decisions with all of the facts available. If all of the facts are not available, then your lawyer should not have allowed you to be forced into mediation until all facts are available and should work diligently to obtain any and all relevant facts prior to mediation. Question any pressuring by your lawyer for anything. Look behind the pressuring statements and see if you lawyer failed in some aspect and is trying to get you to concede by pressuring you in one direction to hide their mistake.

  13. Finally, be alert to everything happening and know that you have a right to leave. Do not let your lawyer or mediator tell you that you cannot leave if fearful. Question inappropriate actions such as a mediator allowing alcohol or drugs during mediation or asking you to stay late after mediation ended. Question discussions that do not relate to topics in negotiation especially when such topics may increase fear or anxiety. Spending a full meeting on the mental status of your opponent is inappropriate and indicates an intention to create a biased environment...

  14. Until mediation functions within defined laws of unbiased accountability over actions within mediation, try to avoid being forced into mediation. Mediation Confidentiality must fail with claims of abuse and fraud.

Proposed Guidelines and Laws for a Fair Mediation

(Check Back for Continual Updates)

  1. Videotaping required for all mediations. Similar to court, videotaping reduces the inclination to abuse, lie and manipulate.

  2. Time limits must be imposed. If negotiations cannot be accomplished within six hours in one day, the parties should go to court. Prolonged mediations serve only to represent a feudalistic system where might overcomes right as the smaller, weaker person most likely will not be able to endure long times, excessive duress, and will fail to abuse and conciliation. Without time limits enforced, Barbarism and Mediation become synonymous.

  3. Court-ordered mediations must require anonymous mediators picked from a county list of acceptable mediators in sequential accepted order of mediators thus eliminating self-serving actions, backscratching, and collusion of lawyers and mediators. Plus a mediator would be less likely to manipulate a mediation for more referrals and money as the name would be only one on a list of many and would get a chance to mediate when that name came up again. Using a list, maintained by a third party contractor, contracted under federal guidelines, and based on county or parish courts, eliminates bias between the judge and mediator as well as mediator and lawyers.

  4. As for Texas, the Texas State Bar would be required to fund the above contractor through increased legal membership fees to compensate for the added costs. Although the State Bar would fund the third party contractor, the State Bar would have no control over the list or credentialing for the list. All would fall to the third party. By allowing the State Bar to fund the contractor, the State Bar justifies some of its existence to the public. This list applies only to court-ordered mediations.

  5. In addition, a set fee for court-ordered mediations, regardless of time at mediation, must be implicated. This fee applies only to court-ordered mediations and should be paid by the State Bar by increasing fees to lawyers.

  6. The set-fee mediation paid by the state bar with a mediator picked in order by a third party contractor allows the public to go into mediation without additional costs.

  7. Lawyers and mediators stand to make more money by going into mediation before filing a case in court. Going into mediation before a court case is filed frees picking the choice of mediator outside of a set court list and allows the mediator to charge what they want per hour as well as the lawyer. The guidelines of videotaping, time constraints and all would still apply for any mediation whether in or out of court. Only mediator choice and mediator reimbursement changes after a case is filed as the fee for service becomes fixed under mediation once the case is filed. All mediation guidelines created to protect the public remain regardless of in or our of court.

  8. If lawyers and mediators insist on mediating before filing a case, then case numbers for the court should drop as cases become settled before filing a lawsuit, thus saving time and money for the courts and money for the taxpayers. The lawyers, mediators, courts and taxpayer win in this scenario.

"Before you enter mediation, success may be only up to you. Do not be deceived. Back-dealing of the legal profession is real. Your mediation results may have already been decided by the lawyers and mediator before mediation. Protect yourself. Know your rights. And leave at the first indication of manipulation.
— J.C.

"Knowing to be aware of the manipulation and abuse possible in mediation impacted how I allowed my lawyer to act on my behalf. After being told that the initial document would not be binding and I should sign, I said "NO". SMA helped me to be aware.  Thank you, SMA!
—Kristy C.

 

Our Mission

Instilling awareness about the reality of mediation and aiming to educate the "common man" on the true environment of mediation, we aim to minimize the abuse tactics of lawyers and mediators on the average person through knowledge and support of the public whilst working towards required defined rules above guidelines in the mediation process.

Our Vision

To create a knowledgeable public, awareness of the problems with mediation must be publicized. Mediation can be forced. We look to build a community of individuals and their stories that champion change and increase regulation in mediation and in the legal community.

As a For-Profit Organization, We enjoy the freedom of lobbying and advocating for our cause without limitations found in Non-profit organizations.

We Need Your Support Today!

Email: support@smanow.org

Phone: TBA