Difference Between Mediation and Representation – Karen Fenchel does not represent either party, which represents a drastic difference between her work as an adversary lawyer and a mediator where her primary goal of protection as a representative is absent. Karen’s function is one of looking at the whole of the situation rather than at any particular part.
I. Non-Representation. Karen is unavailable to work for either of you as a counselor or advocate in connection with any of the matters arising in the mediation at a later time, nor would she be a witness for either of you unless both consented and felt that it was in the best interest of the parties to do so.
II. Mutuality. The process of how we work together is mutual and to be determined by the three of us rather than by my imposing an immutable process on you.
III. Voluntariness. Nothing binding happens in a mediation process until after an agreement has been reached, and drafted by Karen. We highly recommend that you have it reviewed by lawyers before signing any agreement. Either party is free to leave at any time.
IV. Risks. Coming to an agreement just for the sake of agreeing and not standing up for what you each believe to be right is more dangerous than failing to reach an agreement and having to resort to representation by adversary lawyers.
V. Good Faith Negotiation. We agree that this is a good faith negotiation and that any statements made by either party would be inadmissable as evidence against the other. The basis for this is to allow you to say whatever you would like without legal representation.
VI. Full Disclosure. Each party promises to fully disclose any and all relevant facts, documents, etc., requested by the other party that may have relevance to the mediation.
VII. Splitting of Fees. Unless there is a good reason to adopt some other principle, we agree on a principle that the parties will split my fees equally.
VIII. Expression of Opinion by Mediator. Our highest priority in these mediations is for you to reach an agreement that you each believe to be fair. Karen will not offer advice or opinion about any particular issue unless one or two conditions exist: (a) if it feels that one party is taking advantage of the other in the process, or (b) that you are reaching an agreement that appears to be extremely unfair or sufficiently unfair that it would be a severe miscarriage of justice.
IX. Confidentiality. Kaern hold nothing confidential between the parties, unless we agree that she should do so. If she speaks with either of you separately, the content of the conversation is available to the other party. She will not speak with either of your lawyers about anything that was said in the mediation unless both parties give permission.
X. The Role of Law. Assuming you wish to do so, Karen will make predictions about what a court would do and will role play what she thinks your lawyers would say in a given situation. She tries to strike a balance between keeping law or prediction about what a court would do from taking over, or being disregarded as irrelevant. The law is more subjective than most people experience it, and lawyers disagree about what the law is, as do judges. Ideally the law is part of the mix of things which are relevant in mediation, having no greater or lesser strength than other equally important factors.
XI. Lawyer Review. It is important to have your individual attorneys review the agreement reached.
XII. Setting Agenda. We mutually decide on the agenda, and Karen will emphasize our developing a process which responds to your most normal way of behaving with each other for utmost effectiveness.
XIII. Mediator Role. Karen will act as an impartial person and will make interventions pointing out unproductive communication patterns, suggest options to the parties, clarify statements made by either of you, help point out errors of disagreement and agreement, draft the agreement, and comment about the process.