Honorable Mention Essay
By Jason Lesnevec
The first issue I face as the mediator stems from Section 9 of the Uniform Mediation Act.
My primary area of mediation for the past ten years has been in family law and I have
not looked into any warranty law issues since law school. It is my duty under Section
9(c) to disclose these qualifications to Abner and TK Toys. I also should inform the
parties that I have two hours of training in the online program, even though I feel like I
have a good handle on it. Being a natural on the computer accompanied by such
training, I should satisfy Competence Standard IV of the Model Standards of Conduct
for Mediators. If my competence satisfies the reasonable expectations of both parties as
required by Standard IV(A), I can move on to the specific issues of this mediation.
Under Quality of the Process Standard VI(A) I have a duty to promote procedural
fairness and party competency.
It is clear that Abner is at a disadvantage and lacks computer competency. In order to
uphold my duty under Standard VI(A)(10) I think it is appropriate to explore any option
Abner may have to gain computer access. In addition, I would inquire to whether Abner
might get assistance from a computer savvy friend or relative. His daughter might be
willing considering the help she provided thus far. If these options fail, I would inquire
with local technology agencies that could supply a computer with access to the
mediation and perform any electronic tasks that Abner might need to ensure a
competent mediation. Any assistance with the mediation that Abner might receive
should not be a problem because Participation in Mediation Section 10 of the Uniform
Mediation Act allows an attorney or other individual to accompany Abner during the
mediation. The time constraint and distance between the parties in this case
encourages me to advocate for the use of online mediation. In addition to these
concerns, Abner consented to online mediation and was the party who purchased the
toy. Under the Note on Construction of the Model Standards of Conduct for Mediators,
the online mediation agreement between TK Toys and Abner may take precedence
over the Model Standards of Conduct. It does not seem fair that an online corporation
such as TK Toys should have to deviate from their agreements with the company’s
buyers.
By making an exception for Abner, TK Toys could potentially face a slippery slope of
other purchasers unwilling to mediate online. On the other hand, a non-negotiable
mediation clause present within an online consent form might be unfair to elderly
consumers such as Abner. It is unlikely that Abner would have to sign such a consent
forum if buying the toy in person. He had no option but to purchase the toy online since
TK Toys only sells online. If this mediation were to take place in person, the burden to at
least one of the parties cannot be avoided. Abner, TK Toys, and myself are all in a
different states. An online mediation seems best. The biggest concern is finding
computer access and assistance for Abner. If Abner is unable to access a computer or
help at no cost, the next problem involves who should bear such cost. TK Toys pays all
of the costs of mediation, but the company might not have expected to pay for a buyer’s
access to a computer or for help facilitating the buyer’s participation in the mediation. In
all, my duty as mediator is to make mediation accessible to those who elect to use it as
outlined in Advancement of Mediation Practice Standard IX. Abner has a right to
exercise self-determination to the process design of the mediation as per SelfDetermination Standard I of the Model Standards of Conduct for Mediators and I will
consider any alternative he may have to an online mediation. Overall, however, I must
look after the interests of both parties and ensure a fair process to everyone involved.