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Mediation sessions are conducted by one or more mediators whose role is to ensure that - through frank and orderly communication between the parties - the concerns of all parties are fully considered, the issues involved are thoroughly discussed, and all viable resolution options are reviewed.
Mediation sessions, which could be as short as a half hour, generally last for between two and three hours. Sessions are scheduled to meet the needs of the parties and can be held during the day or in the evening.
The mediation process is less formal than that in court, and mediation does not involve the introduction of evidence or the presentation of testimony. While parties may bring an attorney to assist them during a mediation session, this rarely is done. Attorneys often advise clients that it is more cost-effective for the client to go to mediation without an attorney, and any agreement reached in mediation could provide that it not become final before review by the attorneys for one or more of the parties.
Mediators must be impartial in their dealings with the parties to a dispute, and they are careful to remain neutral during mediation sessions. While decisions concerning problem resolutions always are those of the parties and not the mediators, the mediators often help the parties test possible options by asking "reality check" questions about how a possible resolution might be implemented. In summary, the mediator retains control of the decision making process; the problem and its disposition, however, always remain the responsibility of the parties.
Participation in mediation always is voluntary. This is true no matter the referral source - although it is recognized that parties are obliged to give serious consideration to the suggestion of a judge, for example, that they explore the possibility of mediating a dispute rather than having the judge make a determination as the result of a trial.
Mediation sessions are private and confidential. The mediators cannot disclose the details of mediation discussions (except in very limited circumstances defined by law, such as when allegations of child abuse or neglect are made during a mediation session). In cases referred to mediation by a court, we will advise the court whether or not a mediation session was held and whether or not an agreement was reached. If parties referred to mediation by a court enter into a written agreement, a copy of that agreement will be given to the court.
A mediation session almost always begins with an opportunity for each party to explain their perspective concerning the problem and issues involved. In order to accomplish this, each party is provided a few minutes of uninterrupted time. Once that is concluded, the mediators might ask some questions to help clarify matters. The mediators then will encourage dialogue between the parties in an effort to develop a mutually acceptable resolution.
While mediation generally involves the parties to a dispute speaking directly with each other, mediators will at times ask to caucus separately with each party. This usually happens when a mediator feels that facts in dispute or positions taken by a party need clarification but that such clarification can best be initiated in a private discussion with the party. Sometimes, when there is more than one mediator, the mediators will ask to caucus with each other in order to discuss their perceptions of how the mediation session is progressing.
As the mediation session progresses, mediators usually will take notes about issues requiring attention and about elements of agreement between the parties. Such notes will help the mediator draft a written statement detailing the agreement reached by the parties. The mediator will fully review with the parties each element of the written agreement, make certain that the written statement accurately reflects the understanding reached, and ask each party to sign the agreement statement. Sometimes the agreement will fully resolve the problem or problems that brought people to mediation. At other times, the parties will have been able to resolve only a part of the total problem.
At the close of a mediation session, the parties and the mediators will discuss whether or not a follow-up session should be scheduled. Such follow-up sessions might seek to address unresolved issues, or they might serve the purpose of reviewing how a mediated agreement is working.
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