Overview of MWI’s BMC & District Court Program

Mediation Works Incorporated (MWI) is dedicated to providing mediation to parties to the BMC & District Court Departments while creating an opportunity for mediators to enhance their mediation skills and learn from other mediators.

Purpose of this Document

This document is intended to provide MWI mediators with an understanding of MWI policy and procedure regarding the MWI BMC & District Court Program.  Please read and refer to this document as needed.


Table of Contents (clicking on a topic below will take you to that topic within the document)

• Program Overview
• Program Goals
• Program Requirements
• After Being Accepted
• Principles of Mediation
• Opportunities
• Scheduling
• Time Commitment
• Remaining on the Panel
• Diversity
• Evaluating Mediators
• Introducing Mediation in Court
• Case Selection
• Forms
• Post-Mediation Procedures
• Feedback/ Conversations
• Guidelines for Observing Mediations
• Mediation Promotion / Referrals
• Non-Compete
• Conclusion

Program Overview

Upon successful completion of MWI’s Executive or Forty-Hour Mediation Training, interested new mediators can request the opportunity to participate in MWI’s BMC & District Court Panel of Mediators. These new mediators will be given an opportunity to:

• Observe two BMC & District Court cases and then
• Co-mediate two small claims cases.

Mediators are required to write a summary of the four mediation experiences and submit them to the Director of Mediation Services for review and discussion.

After the two observations and two co-mediations, the Director of Mediation Services and/or the Executive Director will discuss next steps for the mediator, which include:

• Acceptance onto the BMC & District Court Panel
• Recommendation to enter into MWI’s Mentor Program for additional skill development
• Ending ties with MWI

The decision will be based on the mediator’s four written summaries, feedback from co-mediators, feedback from parties and feedback from court staff.

Interested Mediators who have not taken MWI Training:

Candidates should submit two letters of reference, a resume and a photocopy of a basic mediation training certificate (minimum 30 hours). A determination will be made based on the review of materials submitted as well as need for additional mediators. Preference is given to MWI-trained mediators until others show an understanding of and commitment to MWI’s principles of mediation and the facilitative, interest-based style.

Program Goals

• To provide parties with an opportunity to resolve their disputes in a mutually agreeable manner;
• To provide mediators with the opportunity to increase and enhance their mediation skills in a BMC & District Court setting;
• To create a forum for court mediators to discuss mediation topics and to debrief cases in a group setting (MWI Roundtables);
• To use a co-mediation model whenever possible to:
a. Increase the perception of neutrality according to gender, age and ethnicity.
b. Model effective communication between parties.
c. Provide MWI’s mediators with an opportunity to learn from one another by sharing skills and providing feedback.


Program Requirements

After being accepted as a member of MWI’s BMC & District Court Panel, the following is asked of our mediators:

• Uphold MWI’s five principles of mediation (more information is available at www.mwi.org/mediator/guidelines.htm#Principles_of_Mediation);
• Co-mediate twice per month;
• Debrief with co-mediator and/or observer focusing on “worked-well’s” and “do-differently’s.” Debriefing will be an important building block for the development and advancement of your mediation skills;
• Submit availability by the 15th of each month;
• Submit paperwork to MWI within 48 hours of completing cases;
• Co-mediate at least two additional cases, for a total of four cases, before solo mediating;
• Attend at least one MWI BMC & District Court Roundtable each year (more information and a schedule are available at www.mwi.org/mediator/roundtable.htm);
• Co-mediate at least ten cases before taking an advanced training; and
• Complete Summary Process training before mediating Summary Process cases.

In addition, MWI asks that you fulfill the following as required by the Rule 8 Guidelines of the Uniform Rules on Dispute Resolution:

• Contact the Director of Mediation Services after each observation or co-mediation to discuss any pertinent “worked-well’s” and “do differently’s” related to the mediation and your experience co-mediating;
• Provide feedback to the Director of Mediation Services about each case and co-mediator; and
• Submit necessary AOTC documentation to MWI, initially within one month of your acceptance to the Panel and then annually, in order to maintain your status as an approved mediator for the trial court system. The application can be found online at www.mwi.org/aotc.


After Being Accepted

After being accepted as a member of MWI’s BMC & District Court Panel, the following is asked of our mediators:

• Uphold the principles of mediation;
• Co-mediate twice per month;
• Submit availability by the 15th of each month;
• Contact the Director of Mediation Services after each observation or co-mediation;
• Willingly provide feedback to the Director of Mediation Services about each case and co-mediator;
• Submit paperwork in a timely manner;
• Co-mediate at least four cases before solo mediating;
• Co-mediate at least ten cases before taking an advanced training;
• Complete Summary Process Training before mediating Summary Process cases;
• Attend at least one MWI BMC & District Court Roundtable each year;
• Submit necessary documentation each year to maintain status as approved mediator for the trial court system.


Principles of Mediation

MWI requires its mediators to uphold the five principles of mediation.

1. VOLUNTARINESS – MWI mediators work to insure that each party is informed about the voluntary nature of mediation before the session begins. Parties are also informed of their right to withdraw from the mediation at any time once the process begins. Mediators will inform parties about their option to withdraw throughout the session, if necessary.

2. CONFIDENTIALITY – MWI believes that mediation is an opportunity for parties to discuss their issues openly with the reassurance that they will remain private and within their control. Given the private “closed door” nature of mediation, MWI mediators take extra precautions to ensure that parties do not feel pressure to settle. The Director of Mediation Services and other trained staff carefully conduct follow-up calls and review exit questionnaires to ensure that MWI neutrals are not pressuring parties towards settlement, especially in light of the confidentiality of the process.

3. SELF-DETERMINATION – The terms of an agreement will be determined by the parties. MWI mediators will not try to influence or direct either party in any way towards a particular agreement.

4. NEUTRALITY/ IMPARTIALITY – MWI mediators work to ensure that they remain neutral and that each party is treated fairly and with respect by both mediators and the other party.

5. INFORMED CONSENT – MWI mediators work to ensure that each party is informed about the terms of an agreement to which they are planning to give their consent. The mediators will also ensure that the parties are fully informed about mediation before they give their consent to participate in the process. The mediator’s role is to help each party identify their needs and build those interests into an agreement. Although counsel is not required for either party at the mediation table, both parties will be asked to review the terms of any potential agreement with an advocate away from the table before signing. It is neither MWI's nor the mediator’s role to give legal advice, counsel, or to analyze either party's legal rights. Unrepresented parties are encouraged to review their legal rights and obligations before finalizing any mediated agreement.
Opportunities
 

Opportunities

MWI’s BMC & District Court Program mediates small claims and summary process cases in twelve different courts on weekdays. Current courts include Dorchester, East Boston, Fall River, Hingham, New Bedford, Newton, Plymouth, Roxbury, Quincy, South Boston, Taunton and Wrentham.  Times and days vary; check MWI’s mediator resource page on the web for specific information or contact the Director of Mediation Services.

For all civil matters, mediators are present at the call of the list. Before the list is called, the clerk announces that a mediation program is present and that the court recommends mediation should be attempted as an alternative to their case being heard by a judge or clerk magistrate. Parties who consent to try mediation then go with the mediators to learn about the specifics of the mediation process by listening to the mediator’s opening. If the parties voluntarily agree to try mediation, the parties sign an “agreement to participate” form. If the parties reach an agreement, the agreement is given to the clerk, who records the agreement as a judgment of the court. The parties are then given copies of the agreement and may leave. Parties who decline mediation or who do not reach an agreement are heard by a judge or clerk magistrate on the same day, unless the parties negotiate their own agreement or request a continuance.


Scheduling

As a general rule, mediators should send their availability to the Director of Mediation Services by the 15th of each month. Requests for the coming month should be submitted no later than the 15th of the present month. Requests to mediate in the court program are accepted as early as three months in advance and are filled on a first come first served basis unless other arrangements are made. To be added to the court calendars, contact the Director of Mediation Services, at 617-973-9739 x23 or <jhoch@mwi.org>.

Panel members who do not submit availability by the 15th of the month prior will receive an email from the Director of Mediation Services requesting availability. Mediators should reply to that email promptly if they wish to mediate. Mediators who continuously fail to request mediation dates will be dropped from the roster.

Mediators who cannot keep a commitment to mediate in court must inform the Director of Mediation Services as far in advance as possible for instructions on how to proceed.

Mediators should not call the court if they are unable to attend. Instead they should contact the Director of Mediation Services.


Time Commitment

Panel members agree to be in Court for the start of the small claims or summary process session. Mediators and observers are asked to commit for two and a half hours of time. It is difficult to determine how long mediators will be in court on any given day because the number of cases and the length of the mediations will vary.


Remaining on the Panel

Mediators who continue to mediate twice per month, follow the principles of mediation, adhere to MWI policy and procedure, attend roundtables, and continue to uphold MWI’s positive reputation will be encouraged to continue participating on the panel.

Assembling and maintaining the roster of neutrals:

MWI’s Director of Mediation Services has assembled a mediation roster by interviewing mediators who have completed an MWI Mediation Training Program and were recommended by the instructors, by advertising the need for mediators in various publications in the field, and by interviewing experienced mediators who have contacted MWI expressing interest in mediating with our organization. All prospective mediators are interviewed and, if qualified, added to the panel. The Director of Mediation Services reviews the roster annually, checking with each mediator to ascertain that they continue to be interested in mediating and that their information in the database is current. Mediators will be informed if they are to be removed from the roster either because of inactivity in the program or because they have not demonstrated satisfactory performance.


Diversity

MWI’s policies prohibiting discrimination against staff, neutrals or clients:  MWI has a policy not to discriminate against a qualified staff member or applicant for employment or neutral because of race, color, religion, gender, age, disability, national origin, marital status, sexual orientation, status as a veteran or against people who receive public assistance or housing subsidies. MWI also complies with all applicable provisions of federal and state statutes, rules and regulations that protect against such discrimination. MWI does not deny services to clients on the basis of race, color, religion, gender, age, disability, national origin, marital status, sexual orientation, status as a veteran or people who receive public assistance or housing subsidies.


Evaluating Mediators

Mediators are evaluated by the Director of Mediation Services. Input for this evaluation includes:
• Post session conversations with the mediator
• Observation at select mediation sessions
• Follow-up interviews with the parties
• Conversations with other mediators.
• Regular follow-up phone calls to parties and court staff to determine whether parties are satisfied with the mediation process and with their mediated agreement, including the agreement's durability.

In the case of a mediator whose performance is unsatisfactory, the Director of Mediation Services, Director of Mediation Services or Executive Director will discuss the problem with the mediator and define a methodology with the mediator for improvement. Methods of improvement include having the mediator observe or receive coaching from an experienced mediator, and/or receive additional training. Until the mediator has demonstrated satisfactory skills, no cases will be offered to the mediator, except with a designated coach or co-mediator attending. Any mediator who has not demonstrated satisfactory skills within three months will be dropped from the roster.


Introducing Mediation in Court

Sometimes the court staff will ask mediators to speak about the program. Please be sure to highlight the following points:

• Both parties have to agree to mediation. We recommend both parties meet with the mediator to learn more about the process.
• Mediators help parties reach their own agreements. If an agreement can be reached in mediation it will be filed with the court, parties will be free to go, and the case will be considered settled.
• Parties will not lose anything by learning about mediation or participating in mediation. If the parties do not settle in mediation, they will still be able to have a hearing that day.


Case Selection

MWI BMC & District Court mediators will offer mediation to parties involved in any cases referred by a Clerk Magistrate or Judge, in accordance with MWI policies and the Uniform Rules on Dispute Resolution.

Forms

The following forms are needed for each mediation:

• Agreement to Participate in Mediation form
• Agreement for Judgment form
• Mediation Memorandum form
• ADR referral form

Mediators are required to bring blank forms to court. During the New Mediator Orientation Session, the Director of Mediation Services will go over the proper way to fill out each form. If forms are consistently filled out incorrectly, are incomplete or are not provided to MWI in a timely manner, mediators risk being removed from the panel.

BMC & District Court mediation forms can be printed from the MWI website. Forms can be found by clicking here.

Please do not ask the court for our forms as they do not have them and do not ask them to photocopy blank forms for you. BMC & District Court Panel mediators should go to court properly prepared.

Note: Some courts (listed below) request that MWI mediators utilize courthouse-specific Agreement for Judgment forms. You can ask for these forms at either the Small Claims Desk or the Civil Desk (for Summary Process). Please reference the table below to identify the correct forms to use:

Proper Agreement for Judgment Form to Use

Post-Mediation Procedures

• All original documents are placed in the court file.
• Make photocopies of all completed forms: one set for MWI, one for each mediator’s personal records (if they require them). The parties each get a copy of the Agreement to Participate form, regardless whether they settled or not. If they settle, they will also each get a copy of the Agreement for Judgment form and the Mediation memorandum (if used). Instructions as to where to get the documents photocopied are included in the sections on individual courts.
• Send copies of all the mediation documents to MWI within 24 hours. They are very important, as MWI is required to provide statistics to the Administrative Office of the Trial Court on all mediations that we do.
• Contact the Director of Mediation Services or 617-973-9739 x23 to inform him about the cases that you mediated or observed that day


Feedback/Conversations

It is a policy of MWI to have mediators and observers participate in providing detailed feedback to each other after co-mediating or observing. The level of experience of the person providing feedback is irrelevant. Feedback is not an evaluation of how well one thinks a mediator did; rather, it is the sharing of observations and information. It is a conversation about the mediation, not a time to reach conclusions or evaluate performance.

Those providing feedback should ask the mediator(s) to explain the purpose or intention of specific actions and/or inquire about their reasoning for asking specific questions.

Feedback conversations about what was observed should last 10-30 minutes, if not longer.


Guidelines for Observing Mediations

One reason we ask people to observe mediations before they mediate is so they can get an idea of what happens in ‘real life mediations’. While we make every effort to ensure our mock mediations in trainings are true to life, nothing can take the place of an actual mediation.

Mediators work hard to establish a relationship with the parties within a short period of time. This relationship is often fragile and needs to be handled with care. The mediators will introduce you as an observer to the parties when the initial introductions are being made, and will explain that your role is to simply observe the mediation process.


When you are observing a mediation, please note the following:

• Be on time. If the mediation has started when you get there, do not enter the room. You will have to wait until a new case begins or for your next scheduled opportunity.

• Before the mediation, discuss with the mediators whether they welcome your input, thoughts or suggestions during mediator caucuses. Some mediators don’t mind, while others do not like it. Some mediators may want to wait until the end of the mediation to discuss the case with an observer.

• Observers, as a general rule, should refrain from speaking when the parties are present, in order to maintain a fair process for the mediators and the parties.

• Notes taken during the mediation by observers should not include details of the case, docket numbers or parties’ names. Observers should identify elements of the mediation process that worked well, what the mediators might do differently in the future and other moments during the mediation that warrant discussion.

• Observer should sign the Agreement to Participate before the mediation starts.

• Always plan time to debrief with the mediators after the mediation. Feel free to ask mediators why they asked the questions they did or what their intentions were at any given point. Give specific examples wherever possible.


Mediation Promotion / Referrals

MWI hopes to create mutually beneficial relationships with BMC & District court mediators who would like opportunities to mediate cases for pay through MWI. Mediators who are interested should contact the Director of Mediation Services to discuss participation in this program. Those accepted will be expected to promote MWI’s mediation services. If a referral to MWI turns into a paid case, the referring mediator will have the opportunity to mediate the case for pay through MWI. Participating mediators may also be given customized MWI business cards to distribute.

BMC & District court mediators with at least three years experience as a mediator can be considered to solo mediate cases for pay. The Director of Mediation Services and Executive Director will determine who can co-mediate and solo mediate based on the mediators case experience, understanding of the principles, commitment to the field and ability.


Non-Compete

All BMC & District court observers, mediators and panel members can not solicit clients while representing MWI in the BMC & District Court program. Any potential referrals, clients, cases, trainings, or other services must be provided to the Director of Mediation Services. Failure to comply with MWI’s non-compete will result in immediate ending of ties with MWI. When in doubt, contact the Director of Mediation Services.


Conclusion

It is the hope of MWI that the BMC & District Court Panel serves a number of functions including providing a forum for mediators to grow their mediation skills and learn from other mediators.

For additional information, please contact Josh Hoch, MWI's Director of Mediation Services, at 617-973-9739 x23, or <jhoch@mwi.org>.

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