The Mediation Process

Mediation is an informal, consensual, multi-stage process designed to get results.  It is less formal than a trial or arbitration, but there are distinct stages to the mediation process.  Communications made during mediation are generally confidential.  See Confidentiality in MediationMost mediations proceed as follows:

Stage 1: Mediator's Opening Statement. After the disputants are seated at a table, the mediator introduces everyone, explains the goals and rules of the mediation, and encourages each side to work cooperatively toward a settlement.

Stage 2: Parties' Opening Statements and Identification of Issues. Each party is invited to describe, in his or her own words, what the dispute is about and how he or she has been affected by it, and to present some general ideas about resolving it. While one person is speaking, the other is not allowed to interrupt.

Stage 3: Joint Discussion. The mediator may try to get the parties talking directly about what was said in the opening statements, the issues, and possible solutions.

Stage 4: Private Caucuses. The private caucus is a chance for each party to meet privately with the mediator (usually in a nearby room) to discuss the strengths and weaknesses of his or her position and new ideas for settlement. The mediator may caucus with each side just once, or several times, as needed. These private meetings are considered the guts of mediation.

Stage 5: Joint Negotiation. After caucuses, the mediator may bring the parties back together to negotiate directly.

Stage 6: Closure. This is the end of the mediation.  If an agreement is reached on any issue, the agreement is put in writing, signed by the parties and their attorneys (if any and/or if present), and submitted to the Court, unless the parties agree otherwise.  If the attorney for any party is not present when the agreement is reached, the mediator must mail a copy of the agreement to the attorney within five days.  That attorney has 10 days from the date the agreement was mailed to serve a written objection on the mediator, unrepresented parties, and other attorneys in the case.  If no objection is filed, the agreement is presumed to be approved by counsel and is filed with the Court by the mediator.  If no agreement was reached, the mediator will review whatever progress has been made and advise everyone of their options, such as meeting again later, going to arbitration, or going to court.  With the consent of the parties, the mediator's report may identify any pending motions or outstanding legal issues, discovery process, or other action by any party which, if resolved or completed, would facilitate the possibility of a settlement.

Mediation works best if the parties are considerate of one another.  To ensure positive results, parties should not interrupt each other.  Instead, they should write down comments, and bring them up at the next opportunity.  The parties should also refrain from making negative remarks about anyone present in mediation. 

If you have an attorney, but he/she cannot be present, and there is an agreement to proceed without your attorney, your attorney will have 10 days to review any agreement before it is filed with the court. 

If a party fails to appear to a mediation conference without good cause for which he or she had notice, the Court may award mediator and attorney fees and other costs against the participant who failed to appear.  So, once mediation is scheduled, be sure to attend and arrive promptly.

If no agreement is reached during mediation, the mediator will report the lack of agreement to the Court without comment or recommendation.  
 

 Source for Six Steps of Mediation:  http://articles.directorym.com/Mediation_The_Six_Stages_-a936114.html