Note: This post is an attempt to respond to a couple of questions that came across from folks who read our recent Mediation article: Get Ready to Put on Your Mediation Armor. The Comments / Questions were these:
- Will we need to defend our objection during mediation? In other words, will they try to pick it apart? Will I need to pull out treaties, plats, legal documents etc during this time or does that just come up in the hearing phase. The blog above mentioned not giving them any strategy.
- Will we need to defend our objections during mediation or is this more about negotiating?
These are great questions, but not ever having been personally involved with mediation, and the fact that we cannot and do not want to give legal advice to anyone, we wanted to do our best to provide a helpful response.
We cannot speak with any certainty as to how the process will play out in the Flathead Compact Mediation Proceedings, but hope this article helps to answer these questions. (The bolded language in the article is our own emphasis).
This article is being posted with the permission of its author Hon. Morton Denlow (Ret.), JAMS Mediator, Arbitrator and Referee / Special Master, and was found at this link: https://www.jamsadr.com/blog/2017/mediation-101-a-primer.
Please keep in mind, this article is generic in nature and is not specific to the Montana Water Court Mediation Process. By providing the information we hope to answer the questions about providing evidence or proving your case in mediation.
Mediation 101: A Primer on How the Mediation Process Works
Not Litigation
Mediation is a consensual process that bears no resemblance to litigation. The mediator has no independent power to resolve the dispute, which can only be concluded through the mutual agreement of the parties. The mediator conducts a series of joint sessions and separate caucuses with the litigants to facilitate agreement. The parties rarely submit evidence or witnesses, because evidence has no legal significance in the outcome of mediation. The mediator can explore a wide variety of issues and concerns in helping the parties address the underlying problems that gave rise to their dispute. Mediators meet separately with the parties as an ordinary part of the mediation process. In the event an agreement is reached, a term sheet is ordinarily prepared.
In the event no agreement is reached, the mediator may follow up at a later date, but cannot resolve the dispute without agreement by the parties. Mediation is most effective when the parties have sufficient information to exchange settlement proposals and when party representatives with full authority are present at the mediation.
Timing and Speed of Mediation
Mediation can be instituted at any time, even prior to the filing of a lawsuit.
Information transmitted to the mediator during the private caucuses is kept confidential by the mediator, unless permission to disclose is otherwise given. Therefore, a party can safely disclose to the mediator information that it would not ordinarily disclose to the other side at an early stage in the negotiation process. Candor enhances clarity of understanding, facilitating settlement.
Absent mediation, neither side might be expected to reveal its true concerns at an early stage in the litigation. A mediator is able to obtain this information without compromising the negotiating position of either side, because the mediator will keep the information confidential.
Consensus and Confidentiality
Mediation is consensual, and the ultimate solution is in the hands of the parties. The mediator can create a casual atmosphere in which creative problem-solving takes place. Clients are encouraged to speak and be a part of the process.
Mediation is also confidential. There are two components of confidentiality. First, the communications between the parties and the mediator in their separate caucuses are kept confidential, unless a party permits the mediator to make disclosure to the other side.
Moreover, the entire process remains confidential. A party can avoid hanging out “dirty laundry” for competitors and others to observe – no public pleadings, depositions, or transcripts. Mediation is generally conducted in the privacy of an office and the parties determine who will be in attendance. Confidentiality can be extremely important in preserving trade secrets and the value of a business while issues are resolved.
Problem Solving Approach
Mediation focuses on problem-solving, rather than truth-seeking. The mediator’s primary focus is to help create solutions, not to assign blame. Mediation does not seek to resolve issues of “right” and “wrong,” but rather focuses on resolving the dispute in a constructive fashion.
As the use of mediation increases, it is important to keep the above features in mind when considering using this type of dispute resolution. As with most things, the right ADR (Alternative Dispute Resolution) process is the one that’s the best fit for the parties. Mediation, however, is a very powerful and effective tool.
Western Montana Water Rights 
Great info. Thank you for the Chainmail!
Just one quick comment/question on the coming mediation process. How is it possible to mediate around the fraud, over reach, reinterpreting/rewriting treaties and precedents, etc etc, in the compact, or the absolute unknown of Tribal conduct/actions/policies/plans in the future?
I posed your question to a friend, and here is his interesting response. Hopefully this will give you and others food for thought concerning the approach you might want to take in mediation:
The venue is Mediation and one must first identify the dispute.
What is the dispute? THE COMPACT. The Fed’s/tribe on one side, and individual filers on the other.
The individual filings are a distraction. A division … divide and conquer.
If there is focus on the Compact’s illegalities, not individually but in toto, the individualism of the filings become moot. Every objector should
object specifically to the Compact, as the dispute to be mediated.
The court and the mediator want you to focus on only the individual filing. Resist.
Demand that the dispute is the Compact itself, and resolution cannot go forward until the inequities and the vagueries of the Compact are discussed and resolved or declared unconstitutional.
The dispute IS the Compact.
Filers en banc should demand that the Compact be declared unconstitutional and revoked. That is the issue to be mediated. None other.
I would not try to harp the separate fallacies in the Compact – to mediate around the fraud, over reach, reinterpreting/rewriting treaties and precedents, etc etc, in the compact, or the absolute unknown of Tribal conduct / actions / policies / plans in the future – but to just demand a halt to the Compact proceeding forward as being Constitutionally Vague.
There is a whole run of court cases that have been defeated on the basis of Constitutional Vaguery.
Here is a fairly good summary explaining the Vagueness Doctrine further:
In American constitutional law, a statute is void for vagueness and unenforceable if it is too vague for the average citizen to understand. This is because constitutionally permissible activity may not be chilled because of a statute’s vagueness (either because the statute is a penal statute with criminal or quasi-criminal civil penalties, or because the interest invaded by the vague law is sufficiently fundamental to subject the statute to strict scrutiny by a court determining it constitutionality).
There are several reasons a statute may be considered vague; in general, a statute might be void for vagueness when an average citizen cannot generally determine what persons are regulated, what conduct is prohibited, or what punishment may be imposed. For example, criminal laws which do not state explicitly and definitely what conduct is punishable are void for vagueness.
A statute is also void for vagueness if a legislature’s delegation of authority to judges or administrators is so extensive that it could lead to arbitrary prosecutions.
A great example is Unitary Management: In the case of people living within Flathead Reservation boundaries, the Montana legislature delegated its authority over water to the Board of Administration that essence is the enforcer of the tribal water right. If someone uses their deeded water rights — in violation of the Board of Administration, what is the criminal charge? If this does not constitute Constitutional Vagueness, what does?
Went through two. Divorce and county zoning dispute. Neither was settled. LOL
Thanks for posting this!
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