The Mediation Process

Mediation is a private process in which an impartial person, a mediator, encourages and facilitates communications between parties to a conflict and strives to promote reconciliation, settlement, or understanding.  A mediator does not render a decision on the issues in dispute, as the primary responsibility for the voluntary resolution of a dispute rests with the parties, but they encourage the disclosure of information and assist the parties in considering the benefits, risks, and the alternatives available to them.  The mediator also does not offer nor provide legal advice or counsel to any party involved in the mediation, so any party appearing pro se should consider seeking legal advice before any mediation.

After the mediation is scheduled, the mediator provides the parties with initial materials that include requests for specific information and documents related to the dispute and an agreement to mediate, which details how the mediation will be conducted and what is expected of the parties throughout the mediation, as well as the specific mediation fee payment policies and procedures.  Once the parties have executed and returned the necessary materials, the mediator schedules confidential conference calls with each party to discuss the information provided and address any questions or concerns that either party may have going into the mediation.  Finally, the mediator takes additional time to study the information and documents provided by the parties and to perform their own independent research of the issues surrounding the case.

In general, the mediation begins with all parties and their counsel meeting with the mediator in a general session.  During this session, the mediator explains the process and sets forth the ground rules.  Afterward, each attorney, or any party appearing pro se, gives a brief opening statement that outlines his or her client's theory of the case and the legal and factual issues.  The clients are encouraged to speak but are not required to do so.  The mediator asks clarifying questions, determines areas of agreement, and inquires as to the status of prior settlement negotiations.  After the general session, the parties separate into different rooms for private meetings called caucuses.  These caucuses are confidential.  Anything said to the mediator during a caucus cannot be repeated outside the caucus except by express permission of the party.  This confidential meeting allows counsel to express matters that he or she would be unwilling to state in the presence of opposing counsel.  Here, the mediator, the party and counsel undertake a candid discussion of risks, the party's interests sought to be protected, settlement flexibility, and strengths and weaknesses of the case, as well as work together create and develop problem-solving ideas and solutions.  At some point during the caucus process the mediator will begin serving as a shuttle diplomat between the parties, conveying settlement offers back and forth.  When it appears that a consensus for settlement has been reached, the mediator brings the parties back together figuratively or literally, and assists the parties in memorializing the essential terms of the agreement to be signed by each party.  Alternatively, if the mediator, the parties and counsel have exhausted all efforts and the parties are remain unable to settle their dispute, an impasse is declared by the mediator and the mediation is concluded.