Mediation is a form of settlement conference in which a trained and skilled third party neutral helps the parties communicate effectively in order to achieve a voluntary and mutually acceptable resolution of disputes. Mediation can most easily be understood as assisted communications toward an agreement.
Mediation is different from other forms of dispute resolution in that the parties participate voluntarily, and the mediator has no authority to make a decision. The decision-making power rests in the hands of the parties. Judges make decisions that are imposed on parties. Mediators do not.
Mediation is a confidential process. The mediation session is held in private. The sessions are not tape-recorded or transcribed. At the conclusion of the mediation, the Mediator destroys any notes she took. The Mediator will not, and can not, disclose any information revealed during the mediation to third parties. The communications by the parties can not be introduced as evidence in any arbitral, judicial or other proceeding.
One of the keys to successful mediation is preparation. Before the mediation, parties should evaluate and discuss the strengths and weaknesses of their case and the other parties’ case. This will help each party have realistic expectations during the mediation. The parties should bring to the mediation all documentation and other evidence necessary to support its case. These may include exhibits, documents, graphs, photographs, charts, or any other form of evidence.
Each party should prepare an opening statement for the joint session. The opening statement is your opportunity to speak directly to the other party. It allows you to inform the other side about your interests and goals in resolving the litigation. It is a good opportunity to clear the air so that you can concentrate on resolving the legal dispute.
Each party should come prepared to be patient. Mediations are a creative and dynamic process. There are no set time limits and you can not rush the process. Once the joint session has been completed, the parties will separate into separate rooms. The Mediator will be going back and forth between the parties. At various times, the Mediator may need to spend more time with one party. This is natural. While one side has considered a position for weeks or months, the mediation may be the first time the other side has considered that position. Sometimes it takes a while for a party or counsel to understand a proposal and to consider it and possible other offers. Keep in mind, that most mediations result in settlement if sufficient time is allowed for the mediation process to work.
Most importantly, each party must come to the mediation with an open mind prepared to listen, not just hear. Listen to the mediator and allow her to do her job for you. As a neutral and unbiased third party, she has no interest in seeing one party obtain a better result than the other. Her sole job is to facilitate an agreement that all parties are comfortable making. Listen to the presentations of the opposing party(ies) during the joint session. It is fairly common to learn new information during the opening statements. Be receptive to learning new information and deciphering how it may impact on your prior assessment of the case. Listen to yourself. Although you should remain open to the suggestions of the mediator, your counsel, opposing parties, you should still listen to your inner voice.
Once a settlement is reached, a written agreement is signed before the parties leave the mediation.