THE MEDIATION PROCEDURE

MEDIATION UTILIZES TWO ROOMS 

One that is large enough to accommodate both parties and their attorneys (if the parties have attorneys).

The second, usually smaller, room is used for breakout sessions, called “caucuses.”  (See below)

The mediator, in his/her sole discretion, may call caucuses if the mediator decides that the parties may talk more freely and openly if the mediator discusses the issues with each party separately.

One party and his/her attorney stay in the larger room, while the second party and his/her attorney retire to the smaller room.

The rooms must be out of earshot of one another in order to allow each party to express his/her opinions openly and confidentially without risk of being overheard by the other party.

THE PROCESS – STEP BY STEP

1. Introductions and Explanation of the Mediation Process
   1. The mediator welcomes the parties and introduces himself.
   2. The parties and their attorneys introduce themselves.
   3. The mediator explains the mediation process:
      1. The mediator is a neutral facilitator who will play “devil’s advocate” and ask a lot of questions of both parties to help the mediator understand exactly what the parties’ issues and mutual interests are.
      2. The mediator’s goal is to help the parties, as the sole decision makers, get to a point where they are able to reach a mutually beneficial agreement.
2. Opening Statements
   1. Each party makes an opening statement as to:
      1. Why he/she is at the mediation;
      2. What he/she considers the relevant issues to be discussed during the mediation; and
      3. What he/she hopes to achieve from the mediation.
   2. Parties then have an opportunity to ask any questions they may have about the mediation process.
3. Information Gathering
   1. The mediator then begins the information gathering phase of the mediation, during which the mediator:
      1. Helps the parties focus their discussion on the relevant issues; and
      2. Assists the parties in identifying areas of mutual interest and in suggesting possible solutions that might lead to a mutually beneficial agreement.
4. Caucuses
   1. If at some point in the discussion, the mediator feels that that a party might more forthcoming discussing the issues in private with the mediator, the mediator has the discretion to separate the parties – known as “caucusing.”
   2. One party remains in the original room and the other party moves to a separate room.
   3. The mediator will move from room to room for private discussions with each party.
   4. The information provided to the mediator during a private caucus is confidential.
      1. The mediator can only convey information obtained during a private caucus to the other party if the party that provided that information consents to that information being released to the other party.
      2. This allows both parties to be totally honest with the mediator in their discussion of the issues during the private caucuses.
5. Resolution
   1. If the parties cannot reach a mutually beneficial agreement regarding the issues, the mediator will end the mediation.
   2. If the parties reach a mutually beneficial agreement, the mediator will reduce the agreement to writing.
      1. Both parties will sign the agreement.
      2. The agreement is binding upon both parties and is enforceable at law.