The Common Law

How is a mediation conducted?

Mediation is a great option because it allows people to resolve a legal dispute without having to go to court. While mediation generally involves less formal procedures than presenting a case before a court, there is a certain degree of structure to the mediation process that should be anticipated.

Mediations usually begin with the mediator's opening statement, which includes an introduction of the parties, an explanation of the rules and objectives of the mediation, and general comments intended to encourage each side to work together in order to reach a resolution. Next, each party is allowed to make an opening statement. The parties' opening statements discuss the dispute from their perspective and set out how they hope to resolve the matter. The opening statement is usually made by an attorney unless the party is not represented by one.

After the opening statements, the mediator may try to facilitate a joint discussion between the parties, which can help to pinpoint the exact issues that need to be addressed and resolved. Once the important issues have been identified, the mediator will separate the parties into different rooms and will conduct private caucuses. This gives the mediator the chance to discuss the strengths and weaknesses of each party's argument and to propose creative settlement alternatives. The mediator may meet privately with each side several times, and this may be followed by another joint negotiation session if the mediator thinks it would be helpful to get the parties back into the same room.

If a settlement is reached, the provisions of the agreement will be recorded into a settlement agreement. If no settlement is reached, the mediator will summarize any progress that has occurred as a result of the mediation and will advise the parties of additional options, which could include trying another mediation at a later date, attempting another alternative dispute method, or preparing to litigate the matter in court.

Keep in mind that the general mediation procedures described in this column may vary, especially for mediations that are administered under time constraints.