times faster over Zoom compared to an in-person joint session. I suspect, anecdotally, the additional layer of technology, as well as not sitting next to each other listening to each other breathe, helps parties get to settlement much faster. And yet, I also exclusively mediate my adoption and guardianship matters through a shuttle model. Guess what the data says? I can mediate adoptions and guardianships faster and get a much higher percentage of settlement in a shuttle model compared to a joint session model. Why? I suspect, again anecdotally, that the challenges that arose to create the necessity of an adoption or a guardianship also contribute to a party’s ability to be easily triggered in a joint session model, thereby necessitating a shuttle process. The last piece of the mediation puzzle to consider is He-Who- Must-Not-Be-Named: the non-attorney mediator. Did you know there is no licensing requirement for mediators in Oregon? It’s true. To paraphrase Sam Imperati, ‘A manicurist must be licensed to touch my nails, but anyone can mediate multi-million-dollar disputes and they aren’t doing anything legally wrong.’ Scary, right? Can a mediator who isn’t a licensed attorney provide good services? Yes, until they don’t; meaning non-attorney mediators don’t know what they don’t know. For instance, how many non-attorney mediators know they need to treat the value in a retirement plan differently than the equity value in a home? Or how many know the equity in a rental should be treated differently than the equity in a primary home? You get my point. Non-attorney mediators are great when there isn’t a legal dispute involved and the dispute is more relational in nature. The cases where you, Oregon litigators, are involved are legal in nature and should be mediated by attorney-mediators. How Attorneys Can Best Assist Their Clients in Mediation. Select the right mediator for your matter. This suggestion is five-fold. 1. Pick a mediator who has a background in the law that envelops your dispute. Here’s a less subtle way of stating it: don’t choose a mediator because they are “good.” Choose a mediator who has experience in your matter’s law. Why? The mediator’s underlying understanding of your matter’s law will impact the questions the mediator asks and eventually will breadcrumb the path to settlement. 2. Pick a mediator who practices in the mediation process that works best for your client. If your client is a hot-head and has a bad habit of making unhelpful remarks, you should be in a shuttle process. If your client is equally concerned about the relationship and the outcome, then select a joint session process. See Family Law Mediation p. 42 41 Trial Lawyer | Summer 2024
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