7. Mediation Essentials — The Typical Mediation Format

As we have already discussed, the mediation format is flexible. There are no hard-and-fast rules of procedure and no rules of evidence. But, most mediators stick to a formula that is used by almost every mediator across the State. In the days or weeks before the mediation is to take place, many mediators request that the attorneys write a brief summary

of the case and describe what they believe to be the issues in dispute. The attorneys may or may not comply with this request.

Typically, the mediation begins with both parties and each of their lawyers in a conference room with the mediator. This session, in which everyone is present, is sometimes called the general session. The mediator begins by giving a general description of the mediation process. Thereafter comes the time when both sides tell their stories. Each side’s attorney briefly summarizes or outlines his or her client’s view of the case. Usually these outlines focus on the issues that his or her client believes are in dispute. Both of the parties are encouraged to speak, but speaking is not required. This is not a test. If you don’t want to speak, you are absolutely free to remain silent. When it appears that the parties and their attorneys have finished stating their positions, the mediator may ask questions about the case, about the parties, whether there have been prior settlement discussions or anything that might have a bearing on settlement.

After the general session is completed, the parties and their attorneys separate into private rooms. From here on, the mediator becomes sort of a roving ambassador, going first to one room to talk with one party and his or her attorney, then to the other room for discussions with the other party and attorney. During these separate meetings, the proceedings are confidential from the other side. The mediator has an obligation not to repeat discussions that he has with one party with the other side. This gives each party and his or her attorney the opportunity to say things to the mediator that he or she is unwilling to say in the presence of the opponent. Of course, the mediator may request permission to tell the other side something that has been said if the mediator believes it will help persuade an opponent to settle.

In these separate meetings, the mediator will ask one of the parties to make a specific offer of settlement and to give the mediator authority to transmit the offer to the other side. Once that offer is communicated to the opponent, the mediator will then request that the offer either be accepted or that a specific counteroffer be made. As long as the parties are willing, counteroffers go back and forth between their separate rooms until settlement is reached. If the parties reach an impasse, this means that the mediation has failed to produce a settlement, and the mediation session is adjourned without settlement. This does not mean that the parties can’t reopen negotiations at a later date. Mediation proceedings that appear to have failed sometimes result in a settlement days or weeks later.

If the parties reach an agreement, the mediator and the lawyers draft a written document that will reflect the agreement. Sometimes the parties come back together in a general session to discuss final details of the agreement. Just as often, however, the parties are left in separate rooms during the drafting process. After the drafting is completed, the parties and their attorneys sign the document. The mediator then signs the document to signify his or her consent to the agreement. At this point, as is discussed in more detail here, the agreement is, in all probability, absolutely binding.

Most good mediators are far more interested in ensuring that parties are comfortable with the mediation than they are in rigidly enforcing a format. For example, if one of the parties has a legitimate reason for not wanting to meet the opponent face-to-face, most mediators are willing to accommodate by skipping the “general session.” Sessions are greatly flexible as to comfort breaks, scheduling, and creature comforts including snacks and drinks. If the session continues for more than half of a day, most mediators arrange for lunch to be delivered so that the session can continue without the participants having to scatter to restaurants.

Robin M. Green, Divorce: When It’s the Only Answer (The Ordinary Mortals Guide, Inc., 2005), Chapter 14, pp. 210-212.