Mediation procedures to expect
Preliminary logistical matters handled by telephone and email (without charge)
An executed agreement to govern the mediation: Principal terms:
--the parties’ commitment to respect the process and to make best efforts to resolve the dispute
--confidentiality of the process
--mediator’s obligation to keep private communications completely private until authorized to disclose
--mediator’s commitment to impartiality
--agreement that it is the mediator’s decision to declare when an impasse is reached
--financial arrangements, usually including a pre-mediation deposit
Pre-mediation submissions, relatively brief, to educate the mediator about thedispute and to help the parties focus their thoughts constructively
The mediation itself: No set pattern, but usually
-- a combination of joint sessions and private caucuses
-- can take time; clear the day
-- no electronic devices in the room, except with a very good excuseMemorializing the resolution:
If settlement is achieved, the mediation is not concluded without a written, signed agreement on principal terms
Approach to mediating the dispute
Conduct the process with the strong conviction that the dispute can be settled and not lightly or quickly conclude that an impasse has been reached.
Using a mix of personal and analytical skills, as well as hard work and patience, find a way to fully engage the parties' sincere interest in the process and, once fully engaged, to help them accept the reality that settlement now would be much superior to continued litigation.
Emphasize the opportunity to decide the outcome rather than being at the mercy and whim of a third party judge or jury.Insist on civility in the process.
Repeated interruptions are not tolerated.Given that there is no set way to handle a particular mediation, approach each mediation with an open mind in sizing up the situation, the parties, the pressure points, and assess on an ongoing basis as the process unfolds how best to get past the divisive issues and reach the point where the common goal of the parties is to leave with a settlement rather than with their open disputes.
A discussion of the merits is often of value to that end, with the mediator's primary objective to underscore the significant risks, uncertainties and costs in proceeding with the litigation. But never attempt to bully or intimidate a party into a settlement.Drawing from insights gained through a career as a litigator, focus on the practical aspects of the judicial process and help the parties and counsel really come to grips with the risks and costs of going to trial.
Find a way to overcome the conventional wisdom that the best one can realistically expect in a settlement is equal unhappiness on both sides.