The Mediation Process
Mediation is a process where a neutral third party facilitates a negotiation between parties to a dispute. The mediator is not aligned with a party, favors neither side and is uncommitted to any particular outcome or result. The mediator
- helps the parties identify and appreciate the risks presented by their dispute
- manages the negotiation process
- acts as a reality check
- facilitates communication
- assists in the search for options
- asks questions to clarify conflicts, and
- intervenes to keep everyone focused and on track.
If a facilitative, joint session process is selected, the parties will at least start in the same room, moving to private meetings with the mediator only for specific purposes. When those purposes have been accomplished, the mediation may return to joint sessions.
In a facilitative mediation, the mediator takes the following steps:
- initiates a pre-mediation conference call with the lawyers to work out logistical issues of timing, location, style of mediation and so forth
- Convenes the mediation at the agreed upon location
- The mediator begins the process by making an opening statement to describe the process, explain how the day will go and express his understanding of the dispute.
- The plaintiff and plaintiff’s counsel provide opening remarks to explain what’s on their mind and why they brought the claim. Plaintiff goes first as the party who initiated the complaint.
- Defendant and defense counsel provide their opening remarks and explain what’s on their mind and how they see the dispute.
- The mediator sets an agenda or list of topics to be discussed if the dispute is to be resolved.
- The mediator proceeds to manage discussion of the issues listed on the agenda so long as it seems fruitful and worthwhile.
- From time to time, the mediator will move to private sessions, called caucus, where he meets privately with each side to discuss issues the parties may not be ready or comfortable discussing in front of each other.
- Once the issues have been discussed and everyone has had their say, the mediator will initiate discussions to explore settlement options.
- If the parties are ready to make offers, the mediator will work with them to convey the offers in the best possible way.
- If a resolution is achieved, the mediator will oversee the drafting of documents and signing of releases and written agreements.
The facilitative process of mediation is:
- Confidential. The mediator will not disclose to the judge what happened in mediation; cannot be called as a witness; and will not reveal anything said in confidence to him.
- Voluntary. Even if you’ve been ordered to attend, you’ve met your obligation if you appeared. You need not stay, though I would appreciate your cooperation in remaining and giving the process a chance to succeed.
- Offers an opportunity to step back from the litigation process
- Mediation is a chance for everyone to act as joint problem solvers rather than sworn adversaries
- Mediation is a safe place to brainstorm options and explore possible resolution without risk.
- If the case doesn’t settle, nothing has been lost, the trail date has not been changed and everyone can return to zealous pursuit of their litigation ends.
If an evaluative, caucus or private session mediation process is selected, the parties typically start in the same room for the mediators opening statement but generally then move to separate rooms. The mediator “shuttles” back and forth between rooms, carrying messages, engaging in risk analysis, and conveying offers and counter offers back and forth. Throughout the process, the mediator openly shares his opinion of the merits including the strengths and weaknesses of each side, and his predictions of the likely outcome if the case goes to trial. The mediator remains neutral, in the sense that he doesn’t take sides, but he does reveal his judgments as to the merits. If the parties are having difficulty coming together as to the value of the case, the mediator may share his views on that issue, as well.
Whenever the mediator meets with one side in private session, or caucus, he has a similar meeting with the other. However, the time spent in each room is rarely equal. In most cases, one side or the other requires more time and effort than the other.
The evaluative mediation process is
- Confidential. Any information privately shared with the mediator that a party is not ready to disclose or reveal to the other side will be kept in confidence by the mediator. In addition, as with facilitative mediation, nothing said in mediation will be shared with the judge or others by the mediator.
- Voluntary. Same as facilitative mediation
- Offers an opportunity to step back from the mediation process, just as facilitative mediation does
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