CBN Mediation & ADR Techniques 2 — Questions and Answers
Question 1: In a caucus during mediation, the mediator meets privately with one party. What is the PRIMARY purpose of this technique?
- To allow the mediator to form a personal bond with that party
- To explore sensitive interests and reality-test positions away from the other side (Correct answer)
- To give the other party time to reconsider their opening offer
- To create a written record of each party's confidential statements
Correct answer: To explore sensitive interests and reality-test positions away from the other side
Caucuses let mediators probe underlying interests and test the realism of positions without triggering defensive reactions from the opposing party.
Question 2: Which ADR method gives parties the MOST control over the final outcome?
- Binding arbitration
- Mediation (Correct answer)
- Litigation
- Expert determination
Correct answer: Mediation
In mediation the parties themselves craft and agree to any settlement, whereas arbitration and litigation produce decisions imposed by a third party.
Question 3: A 'med-arb' clause in a contract means that if mediation fails, the dispute will be:
- Sent back to direct negotiation with new representatives
- Escalated to a second mediator for a binding recommendation
- Decided by the same or a different neutral acting as arbitrator (Correct answer)
- Automatically dropped after a cooling-off period
Correct answer: Decided by the same or a different neutral acting as arbitrator
Med-arb is a hybrid process where an unresolved mediation transitions to arbitration, sometimes before the same neutral.
Question 4: Under the Uniform Mediation Act, mediation communications are generally:
- Admissible as evidence in any subsequent legal proceeding
- Privileged and protected from disclosure in court (Correct answer)
- Subject to FOIA requests if a government agency is involved
- Recorded and filed with the court as a public record
Correct answer: Privileged and protected from disclosure in court
The Uniform Mediation Act creates a mediation privilege that shields communications from later court use to encourage candid settlement discussions.
Question 5: In interest-based mediation, the mediator focuses the parties on:
- Their legal rights and likely court outcomes
- Underlying needs and motivations rather than stated positions (Correct answer)
- The monetary value of each claim as assessed by an expert
- Procedural rules and evidentiary standards
Correct answer: Underlying needs and motivations rather than stated positions
Interest-based mediation uncovers why parties want what they want, opening creative options that positional bargaining closes off.
Question 6: A 'neutral evaluation' session in ADR is best described as:
- A binding ruling issued by a retired judge
- An early case assessment where a neutral gives a non-binding opinion on merits (Correct answer)
- A structured negotiation with time limits imposed by the court
- A form of peer review conducted by industry experts without legal training
Correct answer: An early case assessment where a neutral gives a non-binding opinion on merits
Early neutral evaluation provides parties with an independent, non-binding assessment of case strength to calibrate settlement expectations.
Question 7: When a mediator offers a 'mediator's proposal,' they typically:
- Impose a binding settlement on both parties without their consent
- Suggest a specific settlement figure and ask each party privately if they accept (Correct answer)
- Draft a letter to the court recommending a particular outcome
- Force the parties to split the difference between their last offers
Correct answer: Suggest a specific settlement figure and ask each party privately if they accept
A mediator's proposal is a confidential, non-binding suggestion where each party independently signals acceptance or rejection, preventing either from feeling pressured by the other's response.
CBN Mediation & ADR Techniques 2
In a caucus during mediation, the mediator meets privately with one party.
What is the PRIMARY purpose of this technique?