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Mediation can help resolve a dispute. It allows parties to avoid court and the associated costs. Most importantly, Mediation permits each party to contribute to the solution, rather than have someone else decide the outcome. The mediator is unbiased and will assist the parties to explore, consider and agree on solutions to the dispute.
Attending the mediation session are the parties, the mediator and others as agreed to in advance. In community mediations there may be a large number of persons present and often there maybe co-mediators.
Parties to a mediation may or may not be represented by counsel. When counsel is present, the parties may be encouraged to work with the mediator and to confer with the attorneys on legal issues. In general, protocol with the attorneys is set prior to the session. Attendance at the mediation by the parties with the authority to settle is essential, without which the mediation may not proceed. The session, at the discretion of the mediator or the parties, may be process-centered ( facilitative) or substance-orientation (evaluative). Evaluative mediation is used for industry-specific mediations where an expert may be required to understand the nature of the controversy.
Typically conducted via a telephone conference call, or Zoom session, prior to the first mediation session. The mediator performs an ethics check and get the names of the parties and their counsel or representatives. Administrative matters are then addressed including mediators fee, signing the Agreement to Mediate if not already done, confidentiality of the proceedings and the opportunity for subsequent review by counsel of any agreement. Next, the schedule for the mediation session and any future meetings are determined.
Typically most mediations are conducted via Zoom. Virtual mediation sessions are effective and more convenient for the participants. The mediator starts with an opening statement which will include pertinent information for the parties. The process is described with a few simple rules of conduct: The parties will use common courtesy and allow each other to complete statements without interruption.
The mediator will encourage the parties toward a good faith effort of settlement and full disclosure. All conversations and materials presented in the mediation session are confidential unless otherwise discoverable in a court.
Dispute Determination: During this stage, each party will give an account of the facts and circumstances which lead to the dispute. Issues will be identified and summarized.
Generation of Options and Alternatives: Parties, jointly or in separate sessions (a caucus) with the mediator, will identify areas of settlement. The mediator may summarize the results of the private sessions with each party and encourage options. A realistic assessment of the strengths and weaknesses of each party's own position will be the goal of this stage. Discussions by the parties will continue unless the mediator declares an impasse and ends the mediation. If progress toward an agreement is possible the mediator continues the mediation or schedule a subsequent mediation session.
Agreement Writing: When a settlement is reached, an agreement is prepared and signed by each party. The agreement will include the terms that have been agreed to by each party. If legal counsel is not present, the parties may elect to have the document reviewed by counsel and signed at a later date.