What to expect from a mediation meeting? That’s a great question. Maybe you have a mediation coming up, or your lawyer just talked to you about mediation. First, it’s important to know that mediation is a process where parties engaged in a dispute come together, with the help of a neutral third party, called the mediator, to resolve their conflict outside of a courtroom. It is a voluntary, confidential, and structured setting aimed at finding mutually agreeable solutions, fostering communication, and promoting cooperation.
This article outlines what typically happens in a mediation session, taking you from the initial preparation step to the final resolution step.
Pre-Mediation Preparing for the Session
Before the actual mediation begins, each party needs to prepare for the session. This usually involves:
- Selecting a mediator: The parties choose a qualified mediator, often someone with expertise in the subject of the dispute and with experience with mediation techniques. Mediators are typically lawyers and retired judges.
- Clarifying goals and issues: Both sides must go into mediation having identified the key issues they wish to resolve and what they aim to achieve from the process.
- Providing necessary documentation: Relevant documents, contracts, or evidence related to the dispute are usually shared with the mediator beforehand to help them understand the background of the case.
- Setting expectations: Mediators may have pre-mediation discussions or phone calls to explain the process and set expectations, including the ground rules for the session.
Opening Session: Introducing the Process
The mediation session typically begins with an opening statement by the mediator, who explains their role as a neutral facilitator. Though there used to be a practice of having a joint session where the mediator would get the parties together, the opening session now is usually done with each side separately. Key aspects of the opening session include:
- Explanation of the process: The mediator outlines how the mediation will proceed, the rules of conduct, and the emphasis on confidentiality.
- Establishing a collaborative atmosphere: The mediator encourages both sides to remain respectful and open to compromise. This sets the tone for a productive dialogue, which helps increase the likelihood of resolution.
Private Caucuses: Confidential Discussions
The majority of a mediation’s efforts are focused on these private sessions, known as caucuses, with each party separately. These sessions allow each party to:
- Share sensitive information: A party may reveal confidential information or concerns they would not otherwise feel comfortable sharing with the other party.
- Explore settlement options: The mediator can discuss possible compromises or creative solutions with each side, gauging their flexibility without fear of judgment.
- Test the waters: Parties can float ideas or offers privately to the mediator, who then communicates with the other side to help the parties get closer to resolution.
Negotiation and Problem-Solving
If both parties agree on the terms of a settlement, then the matter is resolved. If the matter resolves, then the parties (sometimes with assistance from the mediator) formalizes the settlement. This often involves:
- Drafting the agreement: The attorneys of the parties will write down the terms of the settlement in a “long form” settlement agreement. If either party is concerned that the other may back out of the deal before the long form settlement agreement is signed, they may request that a “short form” agreement (or memorandum of understanding) be signed before the mediation session concludes.
- Reviewing the terms: Both sides carefully review the terms of the agreement (whether it be the short form or long form agreement) to ensure it reflects their understanding of the terms of the settlement.
- Signing the agreement: Once the settlement agreement is approved by both parties, both parties sign the document, making it legally enforceable.
If mediation fails to resolve the issue, the mediation usually assists the parties in getting a clearer understanding of the other party’s position. From there, the parties may continue litigating the case until either a settlement is ultimately reached, the case is dismissed, or the case resolves through trial or arbitration.
Post-Mediation: Next Steps
After mediation, whether or not an agreement is reached, the process usually results in a better understanding between the parties. Even if a full resolution is not achieved, parties may:
- Continue negotiations: Sometimes, mediation leads to ongoing discussions that later result in a settlement.
- Refine legal strategies: Parties may reassess their legal positions based on what was learned during mediation.
- Avoid litigation: In many cases, mediation helps avoid the time, cost, and stress of a court trial, even if further negotiations are needed.
Conclusion
Mediation provides a constructive, non-adversarial environment for resolving disputes, allowing parties to reach agreements on their own terms. By fostering communication, encouraging creative solutions, and promoting collaboration, mediation is a highly effective alternative to litigation. Even when settlement is not reached, mediation can help de-escalate conflict and set the stage for future resolution.
Why Mediation?
Mediations can be intimidating, especially if you have never participated in one before. They can also be anxiety invoking and scary to someone who has never participated in one before. This guide will help you understand how mediation works, to set you up for success. By being prepared, we can even the power dynamic so that all parties start on the same footing.
Contact us today for our availability to schedule your mediation.
Hanrahan Mediation
2305 Historic Decatur Rd, Suite 100
San Diego, California 92106
(619) 910-1200