Introduction to Alternative Dispute Resolution - Part 2 of 5 - Mediation

Part 1 of this series, "Introduction to Alternative Dispute Resolution," can be found here.

One form of ADR is mediation.  Mediation is a process by which a third party neutral selected by the parties (called a “mediator”) assists the parties to a lawsuit with reaching a mutually agreed upon resolution. 

The mediation process begins when the parties agree to engage in mediation, choose a mediator, and choose a date and location.  After a mediator is engaged, the parties can confer concerning the structure of the mediation, and any “ground rules” they would like to apply. 

In many cases, the parties will be required to submit mediation statements to the mediator in advance of the mediation conference.  Most mediators who require mediation statements request that the mediation statement contain information such as:  the identity of the parties and any other parties with an interest in the case; pertinent facts and background; an honest discussion of the perceived strengths and weaknesses; the attorneys’ fees spent up to the date of the mediation statement; and a history of prior settlement negotiations, if any.  The parties’ mediation statements are not filed with the Court, and are kept confidential by the mediator.

The structure of a mediation conference can vary, depending upon the parties’ agreement, or a particular mediator’s style.  The most common structure includes introductions, statements of position, caucuses, and a closing meeting. 

During the introductions, the mediator and the parties will be together in the same room.  Those present introduce themselves, and the mediator explains the mediation process, including his or her role in the process.  Following the introductions, the mediator will give the parties an opportunity to make opening statements.  Parties may decline to make opening statements. 

After introductions and opening statements (if any), the parties will separate.  The mediator will meet with each party separately.  During these caucuses, the mediator will discuss the case and potential means of resolving the dispute with the parties.  Each party has the opportunity in the caucuses to discuss otherwise confidential information with the mediator in order to assist with the dispute resolution process. The mediator will not repeat confidential information learned during a caucus to the other party unless given authority to do so. 

When the parties have either reached agreement or impasse, they might decide to conclude the mediation.  At this time, the mediator might bring the parties together to summarize where the parties stand at the conclusion of the mediation, although it is not unusual for parties to decide not to have such a final meeting.  If the parties reach an agreement during the mediation conference, the mediator might help them to draft an agreement in order to avoid later confusion over or renegotiation of the terms of their agreement.  If the parties have reached an impasse, the mediator might use this final meeting to summarize the progress the parties have made, and frame the issues that remain to be resolved. 

For more information, see the American Bar Association's page on mediation  or the homepage of Berger Harris's ADR practice.