The mediation conference is held at a mutually agreeable neutral place. Present at the session are the parties, their attorneys, 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 party with the authority to settle is essential. 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 is required to understand the nature of the controversy.
It may begin with an introduction, perform an ethics check and get the names of the parties and their counsel or representatives. Then, administrative matters are discussed: The 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 conference and any future meetings are determined.
Initially the mediator will give 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. They may use the writing pads and pencils provided to allow preservation of thoughts but must allow the pads to be collected and destroyed at the end of each session.
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.
Problem 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: The disputants, jointly or in separate sessions (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. Negotiations by the parties will continue unless the mediator declares an impasse and ends the mediation or continues the mediation in a subsequent session.
Clarification and Agreement Writing: The terms of any settlement will be written by the parties. If legal counsel is not present, the parties may elect to have the document reviewed by counsel and signed at a later date.