THE MEDIATION PROCESS
Mediation is an informal method of resolving disputes; sessions are conducted in a civil and non-adversarial manner.
Typically, though not necessarily, parties are accompanied by counsel. Each party must have present: i) a person having actual knowledge of the salient facts; and ii) a person authorized to fully settle the matter or, under certain conditions, prompt telephonic access to such authorized person.
Parties are encouraged but not required to provide written briefs or summaries of the facts, their positions, with related evidence, and to state what relief or remedies they seek to settle the dispute. Each party may submit its own brief or, if there is more than one party on a "side", a joint brief may be submitted. Briefs are not required to be exchanged with other parties or even the other side.
Parties, not their lawyers, should make any opening statement but they are not required to do so. Multiple parties may select one party to present the statement for that side or each may make its own statement in any combination. Any party wishing to make a statement is welcome to do so.
Opening statements should set out the major issues to be resolved in the order of importance as determined by the presenting party. The speaker should present key facts supporting that position of which (s)he is aware from personal knowledge.
Following the opening statement, the mediator will likely question the parties. Questions may be answered by a designated plaintiff or defendant representative other than counsel, unless specifically requested.
After the question period, the mediator will meet privately first with the plaintiff group, then the defendant group. A clarification question period may ensue, followed by further private caucuses or meetings. It is through this process of caucus and clarification that the parties begin negotiation and, ultimately, achieve settlement. A settlement memorandum is usually prepared in joint session with all parties present.
At any time, should the parties decide they have not made reasonable progress, they may inform the mediator and the mediation session will be discontinued.
The mediator may take notes during the session(s). Irrespective of outcome, such notes will be destroyed at the end of the mediation.
The mediator may not give legal advice to any party nor may (s)he give a joint evaluation of the case. Further, the mediator may not indicate that a settlement is fair; fairness is determined by the parties who are the persons most knowledgeable about the case.