On the morning of mediation, I like to meet with each side separately for a few minutes to answer questions, meet the parties and “take the temperature” of the dispute. Following these initial private meetings, the mediation process typically works like this:
- Step 1: We all meet together for the mediator’s opening statement which describes the process, lays out ground rules, discusses confidentiality and sets the right framework and tone for the mediation. I prefer a joint session for efficiency sake but am open to discussion if you don’t.
- Step 2: We may or may not remain together for opening remarks from the lawyers or the lawyers and their clients. Opening remarks from each side give the parties and counsel an opportunity to say what’s on their minds, how they view the dispute and, perhaps, the relief they seek. During our pre-mediation conference call you can decide whether to include this step in your process. In my experience, it is more often beneficial hearing from the parties themselves than not. Parties feel better about the process when given an opportunity to put the dispute in their own words. I recognize that party and lawyer opening statements can be counterproductive and will accept your judgment about whether to include this step.
- Step 3: Based upon my review of your written submissions and what you tell me in your preliminary remarks, I’ll develop a list of topics which need to be discussed before a resolution can be reached. I call this step developing the mediation agenda.
- Step 4: We will spend the day discussing the issues on our agenda, giving everyone an opportunity to say their piece about that issue. If we choose the evaluative model, most discussion will take place in separate rooms where the disputants can speak frankly to the mediator outside the presence of the other side. If we choose the facilitative model, we’ll start in joint session, move to separate rooms as appropriate, and return to joint meetings when the purpose of a private meeting has been achieved.
- Step 5: Once the issues on our agenda have been explored, we will move to the negotiation stage. I start by asking the status of prior negotiations in joint session or with the lawyers alone. You would be surprised how often the parties do NOT agree on what offers and counteroffers have been made. From there on, I generally carry your offers and counteroffers back and forth in caucus.
- Step 6: If an agreement is reached, we generally get back together in one room to make certain we have a common understanding of the terms. If defense counsel has brought along a Settlement Agreement and Release of all Claims, we will fill in the blanks and the parties will sign it. Otherwise, we’ll prepare a Memorandum of Understanding or “term sheet” listing the items on which we’ve agreed which counsel can use to prepare a final Settlement Agreement.
Please also review:
Are you Ready for Mediation?
Preparing for Mediation
The Mediation Process