A Guide to the Mediation Process for Lawyers and their Clients

The Mediation: What actually happens in mediation?

The following information is provided to clarify the process and assist you in your preparation. The procedures discussed herein are those normally followed in a dispute that is mediated through our services.
Mediation is a voluntary, non-binding process using a neutral third party to help the parties reach a mutually beneficial resolution of their dispute. A mediator helps the parties reach a resolution by facilitating communication, promoting understanding, assisting them in identifying and exploring issues, interests and possible bases for agreement, and in some matters, helping parties evaluate the likely outcome in court or arbitration if they cannot reach settlement through mediation.
Mediation can be described as an assisted negotiation. The mediator is neutral and has no bias against any of the parties or their positions and is the facilitator who assists the parties in reaching an agreement that is acceptable to them. The agreement is not imposed upon the parties; it is reached through the facilitated negotiation process typical of a mediation proceeding.
Mediation is unlike traditional litigation or arbitration where judges and arbitrators make decisions that are imposed on the parties.  The formal procedures found in court or arbitration proceedings are not present in mediation proceedings. There are no rules of evidence or set procedures for the presentation of facts or positions.
Before mediation commences, the parties and the mediator agree upon the procedures that will be followed. It is the party's proceeding; they can fashion it in any way that makes sense to them and the mediator. This absence of formality provides for open discussion of the issues and allows the free interchange of ideas; thus, it becomes easier to determine the interests of the parties and to fashion a solution that satisfies those interests.
The mediator is an invaluable neutral resource to all participants in the mediation process. Lawyers, insurance professionals and their clients use the knowledge and skills of a neutral mediator to plan negotiation strategies and develop options for settlement. The mediator keeps the process focused and moving forward.
When parties agree to mediate, or a court orders mediation, the mediation session or sessions are scheduled. The mediation normally commences with a joint conference among all of the parties and their counsel.
The joint session provides an opportunity for each participant, either directly or through counsel, to express their view of the case to the other participants and how they would like to approach settlement. The opening statements are intended to begin the settlement process, not to be adversarial or a restatement of positions. This session may last anywhere from a few minutes to many hours depending on the number of participants and the complexity of the issues. The mediator will let you know in advance how to prepare for this session.
The mediator often assists parties in determining options for settlement and assessing the relative strengths and weaknesses of positions.
Once settlement is achieved, the mediator will record it for signature immediately to prevent second thoughts from destroying a good agreement.
In some cases, telephone conferences occur following mediation sessions if no agreement has yet been reached. Sometimes, further information is required for the process to continue or additional people may need to be involved in the decision making process.
The mediator will work with counsel to finalize a settlement agreement and determine the procedures necessary for implementation. The mediator is available to provide assistance throughout the process.
If you have any further questions about the mediation process or about our services, you are welcome to contact us.