Next Article: Challenge a Mediation Agreement
Back to: ALTERNATIVE DISPUTE RESOLUTION
What are the procedures for carrying out mediation?
The voluntary mediation process is far less rigid than that of mandatory mediation. Involuntary mediation is somewhat of an informal process. The mediator may employ any number of techniques to help the parties arrive at a negotiated settlement. Mandatory mediation procedure may be subject to law or court order. The most common format for carrying out voluntary or mandatory mediation of a legal dispute with or between businesses is as follows:
Delivery of Evidence – Each party provides the mediator with all of the facts and evidence surrounding the dispute. The mediator will set a date for the mediation.
Introductions – At the mediation, the mediator will introduce everyone, give an overview of the mediation process, and summarize the dispute at hand.
Initial Statements – The mediator will often allow the parties to give an initial statement directed to the mediator and the other party. This serves a couple of purposes. First, it appeases the parties to allow them to voice their opinion on the matter. Second, it allows the parties to state a summary of their belief and facts in a persuasive manner.
Private Sessions – Following the initial statements, the mediator will generally break the parties out into private sessions or caucuses. This means that the parties are placed in separate rooms, while the mediator moves back and forth between the rooms to negotiate the position of each party. These private sessions are optional at the mediator’s discretion, though, they prove to be very effective in getting the parties to exchange dialogue or enter into negotiations. They tend to break down the competitive spirit that is present when the parties are together. The mediator is in the position to play devil’s advocate and help each party understand the logic and legality of the other party’s argument. Importantly, the mediator explains the likely results at trial if the parties proceed to litigation. This can be the strongest tool of the mediator in opening the parties up to negotiation.
Formalization of Agreement – If the mediator is successful, she will assist the parties in negotiating a resolution to the dispute. Once a consensus is reached, counsel for one party is then directed to draft a legal contract memorializing the terms of the settlement. The parties sign the contract to settle the dispute. They are legally obligated act in accordance with the terms of the contract.
Involuntary mediation may follow the same or similar steps, but the process is more closely dictated by court procedure, statute, or regulation.
Discussion: Do you think it is important to give a mediator autonomy in carrying out the mediation process? Why or why not? Can you see any disadvantages to employing the process outlined above? Can you think of any techniques that could help the disputing parties arrive at a negotiated settlement?
Practice Question: How and why do mediators use the isolation of the parties and conducting private sessions to help them reach a resolution of their dispute?
- After identifying the problem that has led to the dispute and gathered all the necessary information from the parties, the mediator starts the bargaining process that will eventually lead to a solution. It is at this stage of the process that the mediator may choose to isolate the parties into different rooms. The purpose of isolation is so that the mediator can privately engage with the parties and give her advice and proposals for solution. In this way, the mediator can advocate for the other party’s interest in a manner that avoids conflict and helps each party understand the interests and risks at issue. Strategically, this enables the mediator to push the process through without the parties knowing if the idea was from the mediator or the other party. https://www.mediation.com/articles/steppJ.cfm
Wissler, Roselle, Court-Connected Settlement Procedures: Mediation and Judicial Settlement Conferences (2011). Ohio State Journal on Dispute Resolution, Vol. 26, Nos. 2-3, p. 271, 2011. Available at SSRN: https://ssrn.com/abstract=1740033
Hinshaw, Art, Regulating Mediators (November 1, 2016). 21 Harv. Neg. L. Rev. 163 (2016). Available at SSRN: https://ssrn.com/abstract=3044870