Mediation is an informal process, and can take various forms depending on the circumstances. The entire mediation could take place in a conversational setting with all parties present. In other situations, it is beneficial for the mediator to meet with the parties individually. The following outlines possible elements of a mediation:
1. Briefs: Many times, a mediator will ask for a mediation brief or statement prior to the mediation. A brief is merely a summary of the issues, from one party’s point of view. This way the mediator will start the session knowing what the issue is about. This will not only save time, it also gives the mediator time to consider the nature of the dispute and consider how best to use the scheduled time.
2. Joint session: Often a mediator will start with everyone in the same room to introduce himself, explain his approach to mediation, and perhaps ask each party to summarize their position. The mediator’s job at this point is to clarify what is being said by each party. Depending on the situation, the joint session could move into the problem-solving phase, or the mediator may feel a need to meet separately with each party.
3. Caucus: The caucus is simply a private meeting between each party and the mediator. Here, the parties can divulge information that they may not want the other party to know or feel comfortable sharing.
4. Testimony: As this is not an arbitration or trial, there typically will not be “testimony” as you would have in a trial or arbitration. However, at times it is beneficial for the mediator to hear from uninvolved parties who have some knowledge about the matter. It is not unusual for phone calls to be made, or for the mediator to meet with someone a party may have brought along. The purpose of this is to enable the mediator to understand the issues and provide input to the parties about how to resolve the issues.
5. Problem-Solving and/or Negotiation: In many types of mediation, the goal is for the parties to engage in brainstorming and problem-solving; in other mediation situations, a more traditional negotiation takes place, often with the mediator conveying offers and responses between the parties.
6. Resolution: Once resolution has been achieved, the mediator will confirm the terms of the agreement, and perhaps assist in reducing the agreement to writing. At times, additional information or action is needed to get to resolution; in that case, an agreement on how to proceed is reached, and perhaps a follow-up mediation session is scheduled.
As mediation is an informal, collaborative process, no two mediations are exactly alike. Sometimes the parties are represented by attorneys, and sometimes not. There usually will be two parties to a mediation, but there can be a dozen or more. A simple mediation can take a morning or an afternoon, some can take several days. Sometimes one or more parties wishes to do some additional “homework,” so an agreement is made to reconvene after a few days. Occasionally a neutral expert is brought in to provide an unbiased opinion on an issue.
The key to remember is that mediation is a collaborative communication and problem-solving process, requiring the input and commitment of the involved parties. As with most things in life, what you get out of mediation depends on what you put into it.