As I was talking to a colleague about my mediation practice, it occurred to me that there were a number of people who may not know what to expect when they arrive at mediation. Typically, mediations follow a predictable path:
- The Mediator Begins the Opening Session.
The mediation process starts with an opening session. After the parties arrive and make themselves comfortable, the mediator will hold an opening session where all the parties meet in the same room. At this time, the mediator will outline the role of the participants, explain the day’s agenda, and introduce everyone.
- The Parties Present Their View of the Dispute
The person who is making the claim (usually the plaintiff if a law suit has already been filed), will make an opening statement. The defendant will then have an opportunity to make an opening statement. The purpose of these opening statements is to allow the parties to tell each other and the mediator what they see as the important issues, both from a legal and an emotional perspective.
Occasionally, the parties themselves will make a statement about their feelings about the case and the process.
- The Mediator Gathers information
The mediator will ask the parties follow-up questions about the issues, and ask for evidence or further clarification of the issues. In a traditional mediation, the mediator will separate the parties into different rooms. Some more modern mediators will keep the parties in the room so they can talk directly to each other and create their own solution to their dispute.
- The Mediator and the Parties Bargain and Generate Options for Resolution
After the parties have shared relevant information, the parties and the mediator try to suggest solutions to the conflict that works for everyone.
A classic example: two people are fighting about a lemon. There is only one lemon, and both parties want it. The mediator, however, digs deeper and determines that one party wants the lemon for the rind to make zest for a cake. The other party wants the lemon to make lemonade. The mediator may suggest that each party have the portion of the lemon that they can use.
This is the time during the mediation where people should be open, flexible, and creative.
- The Parties Reach a Solution
The parties and the mediator strive to reach a resolution to the conflicts between the parties on the day of the mediation. Sometimes, however, that is not possible. But, mediations often narrow the issues between the parties that allow the parties to settle soon after mediation.
After the mediation, the parties will enter into a written agreement that outlines their resolution.
If the parties do not settle their case, the entire mediation process, including the offers and demands to settle, remain confidential. I stay involved to continue the negotiation after the day of mediation; often cases settle after the mediation based on information learned there.