Different areas or kinds of Mediations are handled differently. However there is a general process which occurs in most cases.
At the start, all parties meet together in a general session and sign the “Agreement to Mediate” document. The Mediator will make an “opening statement” which is required by law. At this time any necessary introductions are made, the time schedule is agreed to, parties are made aware of any special needs for which allowances have to be made, such as important medications, etc. The Mediator will explain in detail his authority (He is “in charge” of this meeting) and his role in the proceedings (he is a neutral facilitator, not legal advisor), he establishes the ground rules that everyone must agree to (no interrupting, no lying, no angry outbursts). He will also give an overview of the expected process and explain his objectives for the Mediation (settlement, reconciliation, and understanding). He will disclose his background, experience, training, and any possible conflict of interest.
Next the Mediator opens the floor for orderly discussion of the issues. Each party will be given the opportunity to fully state his/her position and issues that are important to them. This continues until it becomes obvious that everyone is fully informed.
Next, the Mediator will usually caucus with each side. That means the two sides will be moved to separate rooms and the Mediator will discuss settlement offers with each side individually. The advantage to this procedure is that options can be considered and discussed privately before being presented to the opposite parties. Statements can be made while “thinking out loud” which, if explicitly instructed, the Mediator will not relay to the other parties. Only the actual offer or counter offer is presented to the other party.
The Mediator moves from room to room until a final agreement is reached or the Mediator decides to declare impasse. If an agreement is reached, which in MOST cases it is, then a Memorandum of Agreement is written up, signed by all the parties and is conveyed to the court, canceling any scheduled trial.
