Mediation is defined as a process where an impartial person assists others in reaching a resolution of a conflict or dispute. It is the process through which a neutral mediator facilitates communication between disputants to assist them in reaching a mutually acceptable agreement. It is an informal, usually voluntary, confidential, flexible, and non-binding process in which an impartial person called a “mediator” helps the parties to understand the interests of everyone involved, and their practical and legal choices. Nearly every civil case in California be submitted to mediation. Although it is ancient process, many litigants are unfamiliar with the process and how important it can be as a corollary to litigation.
The first step in understanding mediation is to define its stages. Although the parties, their counsel, and the mediator may conduct the proceeding however they see fit based on the case circumstances and their own preferences, mediation is commonly structured into the following thirteen pages:
- Preliminary arrangements;
- This largely includes mediator selection, attendance dates, fee and settlement authority allocation, and those attending the mediation.
- Mediator’s introduction;
- The mediator explains their role, the mediation process, and sets out ground rules that guide the process. They also introduce and describe the duty of confidentiality and the legal, practical, and enforceability of settlement, along with their goals and objectives.
- Opening statements by the parties;
- This phase provides parties an opportunity to provide opening remarks, a time for the parties to fully express and explain to the mediator, and, more importantly, each other, how they view the dispute in their own words.
- Ventilation;
- The mediator allows the parties to cool off after the first phase of mediation.
- Information gathering;
- The mediator spends time with each party gather information about the case and their respective positions.
- Issue and interest identification;
- The parties identify the issues and what issues they find important.
- Agenda setting;
- The mediator sets a specific order which issues will be addressed during the mediation.
- Caucus;
- The mediator meets privately with each party. They use this as an opportunity to gain additional information from the parties, which may or may not be shared with the other party, depending upon the style of mediator, the mediator’s strategy, local practice and custom, and any controlling law.
- Option generating;
- The mediator then helps the parties identify and explore options they have towards potentially resolving the dispute.
- Reality testing;
- The mediator challenges each side about the realistic possibilities of attaining their goals, which can help the parties move away from likely unrealistic positions.
- Bargaining and negotiation;
- The mediator helps the parties facilitate bargaining and negotiation in hopes of reaching an agreement.
- Agreement; and,
- If the parties reach an agreement, the mediator will outline it, and in most instances, draft either the complete agreement or a memorandum of settlement. If no agreement is reached, the mediator will usually restate where the parties are, in terms of potential settlement.
- Closure.
- The final stage of mediation. The parties mediator usually follows up to ensure the agreement has been fully executed and may also ensure the agreement is enforced.
It is important to note that private ADR, and private mediation, are largely recognized as separate from the Court. If you litigate your case you will most likely, but not always, mediate with a private mediator who is affiliated with a private mediation company who has no formal or business relationship with the trial court handling your case. Many individuals work as mediators on a full-time basis. Therefore, mediation is widely viewed as its own independent profession, and not part of or corollary to the practice of law or the court system. That is to say, when you mediate privately, you enter another world distinct from the trial court and your legal case.