The Mediation Process

What is Mediation?
February 10, 2020
What is BATNA, WATNA and MLANTA?
April 10, 2020

If you are ordered to participate in mediation, or have selected to resolve your dispute with a Mediator, you need to know the how the process progresses. There are seven basic steps to the mediation process.

1. Preliminary Contact

This is the first contact between the mediator and the parties. This normally includes an introduction, a basic explanation of the process, review and signing of the mediation/confidentiality agreement.

2. Mediator’s Opening Statement

The mediator will introduce themselves and give a brief explanation on the rules and goals of the mediation session. Mediations will also often explain that they are neutral third parties, with no interest in the outcome of the case. They will inform all parties that the mediation process is voluntary and confidential.

3. Parties Opening Statement

Not all mediations include this, however if they do, this is an opportunity for parties or their legal counsel to identify what issues they hope to address and their desired outcome.

4. Setting the Agenda

The mediator should outline the list of topics or issues that need to be addressed and confirm that all issues have been brought to the table. This keeps an agreement from being held up later, because a new issue is raised after all other items have been addressed and agreed to. These issues will be the basis for setting a working agenda for the mediation sessions.

5. Joint Session

This is an open session with all parties and their legal counsel (if they have legal counsel) present. The parties are encouraged to discuss their interests and positions and identify potential resolutions. Not all mediation will include an open session.

6. Caucus

These are private, confidential meetings between the moderator and each party. Topics can be discussed with the mediator in confidence and will only be shared with another side with permission. This is the time for a party to discuss information they may not want the other side to have, real positions, BATNA and WATNA and possible settlement offers.  (NOTE: A mediation may switch back and forth between joint session and caucus several times.)

7. Concluding Mediation

At this point either an agreement is reached and drafted, at which time all parties and counsel sign. If no agreement is reached, the parties can move forward with other options to resolve their dispute.