Principles of Mediation
In order to work, mediation must be a voluntary process where
the parties enter freely into mediation and any resulting
resolution. The parties are free to end participation in
mediation at any time. BDRS respects this principle of voluntariness.
No one should be coerced into mediation or another ADR process,
or entering into an agreement to resolve a dispute.
Before consenting to participate in mediation, the parties have
the right to be informed about the mediation process as well as
their legal rights and options. At BDRS, efforts are made to ensure
that the parties are fully informed about, and consent to, the mediation or
other ADR process, before and during the mediation
session. Much of the information on the BDRS Web site
is designed with this principle in mind.
The parties—not the mediator—define the scope of the
issues at mediation, and determine the outcome. To paraphrase two
U. S. presidents, at BDRS the parties are the deciders, and the buck stops
with them. This is so even with case evaluation, where the parties
ultimately accept or reject the case evaluator’s opinions or recommendations.
The parties are entitled to a fair and impartial process,
including a neutral, impartial mediator. BDRS is committed to this
principle of neutrality and impartiality. This is so even in the context
of case evaluation, for although the case evaluator will inject
opinions and reactions to the case as presented by the parties,
the case evaluator remains neutral and impartial as to the parties themselves.
Knowing that the mediation is confidential enables the parties
to speak freely and explore options without fear that what they
communicate at the mediation might be used against them if
the dispute is not resolved. In addition to the overall confidentiality
of the mediation, parties also may request that certain information
expressed in the presence of the mediator in a private caucus not be
shared with the other parties.
At BDRS, confidentiality and privilege are protected by
the ADR agreement signed by the parties and Michael
Pezza before the mediation or other ADR session, and
by Massachusetts law. Among other things, the parties
agree that Michael cannot be called to testify or
otherwise appear at a subsequent discovery event or
trial related to the subject of the dispute.
Michael’s notes typically are destroyed one month after
the last ADR session, unless all parties request
otherwise in matters where additional sessions might be
scheduled. Similarly, at that same time, unless directed
otherwise by all parties, all written submissions are destroyed.
Rare, limited exceptions to confidentiality, based on
ethical obligations, are stated clearly in the ADR
There are five generally-recognized principles, or elements, of
interest-based mediation. BDRS adheres to each of these
principles not just in mediation, but also in the other ADR
services it provides.
In addition, BDRS conducts mediations in accordance with the
MODEL STANDARDS OF CONDUCT FOR MEDIATORS (September
2005), adopted by the American Arbitration Association,
American Bar Association, and the Association for