Mediation is an alternative dispute resolution process that is used to resolve problems between the parties. Everyone knows that. But what is important to remember is that the process can and should be informal. Unlike a trial or arbitration that must proceed according to fairly rigid rules, the mediator does not decide the outcome of the case, and instead helps the parties resolve their issues by finding a solution they can voluntarily (and perhaps begrudgingly) agree upon.
Although informal, mediation is not unstructured. There are specific stages to the mediation process that account for its high rate of success. Each stage has an objective intended to encourage each side to work toward settlement.
To start the session, the mediator will take time to introduce himself and explain the goals and rules of the mediation. The mediator will remind and encourage the parties to work cooperatively toward a mutually agreeable settlement. Personally, I like to take this opportunity to explain to the parties what the process will look like for the rest of the day, and I encourage the parties to stick with it and trust the process and not get upset or discouraged because it might seem like progress is slow or even non-existent. It is here where I try to also make the parties feel comfortable and open.
2. Joint Discussions
It used to be that the mediation would always begin with a joint session in the same room, where each side could make a statement in front of the other, with the mediator making a few comments, before the parties retreated to their private rooms. Lately, the joint session has fallen out of favor. I think it truly depends on the parties. Sometimes, a litigant has a real need to express his/her views to the other side. It might function as a sort of catharsis. With sophisticated business clients, perhaps a joint session is not necessary.
3. Private Caucuses
The private caucus is when each party meets with the mediator, sharing the strengths and weaknesses of their position confidentially with the mediator. The mediator may meet with each party once, or several times. Through these conversations, the mediator may also develop new ideas for settlement. These private meetings are the heart of mediation. It is here where the mediator really does his/her work. In the private session, the mediator can explore the strengths and weaknesses of each side’s case with candor and honesty. The mediator can suggest how the negotiation should proceed, depending on the unique circumstances. Maybe the parties will simply exchange numbers; or, perhaps they will negotiate within a prescribed range. There are almost endless possibilities.
4. Joint Negotiation
After conducting the “private caucus” the mediator may bring the parties together to discuss certain issues. Sometimes it is not money that is preventing a deal. It might be something else, and the mediator may feel that one side needs to hear exactly why something either can or cannot be done directly from the other side.
If an agreement has been reached, the mediator will put the main provisions in writing. The mediator may have each party sign the written summary and/or suggest they review it with their attorneys.
If no agreement has been reached, the mediator will review whatever progress has been made and advise of their options. This may even include attending another mediation session.
As always, you are welcome to reach out for assistance with your alternative dispute resolution needs.