The Mediation Process
The mediation process involves two (or more) clients working directly with a mediator to resolve a dispute. Sometimes mediations only take one meeting; sometimes a mediation can take a series of meetings to reach an agreement. Lawyers may be present at mediation, but whether they are present is up to the clients and the mediator.
Mediation is really just a facilitated conversation in which the mediator uses his or her skills to help people communicate and negotiate more effectively. The mediation conversation usually goes in this order:
• Provide background information to the mediator
• Share your perspective on the dispute
• Identify the issues to be resolved
• Gather and exchange information
• Identify your interests and goals in the dispute (what’s important to you)
• Identify options (ways of meeting your interests and goals)
• Evaluate different options to see which works best
• Negotiate and reach decisions and settlements
If the mediation takes more than one session, the mediator may request additional information before the next session. Perhaps you will be asked to update some of the information presented, or get additional information (bank statements, property appraisals, expert reports). You may also be asked to take your time and consider the proposals that were made, to consider your options.
Once an agreement is reached the mediator will usually write it up for you. Some mediators will prepare an agreement for you to sign, which is simply a private contract between the parties. If you are involved in active litigation, the mediator (or one of the attorneys) will prepare the settlement agreement and related motions and paperwork that gets filed in court.
Your mediation process might also be different depending on your context. For example, if you are involved in litigation and about to go to trial, the trial judge may order the parties to a settlement conference. In some courts, the parties are required to engage in mediation.
Michael Kerry Burke has extensive experience in mediating disputes, and is also a certified mediator. If you are considering mediation, call to schedule an interview.