How does the Mediation Process Work?
Mediation is a 6 step process that ends in an agreement between the parties involved.
1. Introductory Remarks
The mediator may have both parties in an opening session or in some cases, will deliver the opening remarks to each party separately, to deliver the introductions and opening statement. The physical setting should be such that no party feels threatened. Most mediators will ask that only the parties involved in the dispute, and their attorneys, be present in the mediation. Children should never be involved in the mediation process, and if present, should wait outside the room.
The opening statement will outline the role of the participants and demonstrates the mediator’s neutrality to both parties. Next, the mediator will review the mediation guidelines and briefly recap the issues.
The opening statement will include ground rules for the mediation that will help the move the mediation through the process and provide an environment that is professional in nature and comfortable for all parties involved in the process. If attorneys are present, the mediator will inform that they can advise, but clients should speak for themselves. All parties will be asked to allow each party to speak without interruption so that each party has an opportunity to share their side of the story.
The mediator may separate the parties into private sessions at this point to allow both parties the opportunity to speak freely on topics that could be confidential in nature, or emotionally challenging to one or both of the parties, in a safe non –threatening environment. This process, called caucus, is confidential, unless the parties agree that the information should be shared in order to move the negotiations forward. The goal of the sessions is to find some common ground by exploring options, and possible solutions for both parties to consider. The mediator may also ask the parties to entertain alternative solutions that do not commit but assist in identifying solutions or concessions.
2. Statement of the Problem
After the opening statement, each party will be provided the opportunity to tell their story uninterrupted. Most often, the plaintiff will go first. The statement is not necessarily a recital of the facts, but it is to give the parties an opportunity to frame issues in their own mind, and to give the mediator more information on the emotional state of each party. Attorneys will not normally make an initial statement since they are in an advisory role. The mediator will ask that each client make a statement as to the issues. The statement is not a search for the truth but more a starting place for the mediator.
3. Information Gathering
Both parties will be asked open-ended questions to get more detail and to identify any emotional undercurrents. The mediator will summarize and repeat key ideas to help in building rapport and clarification before speaking with the other party.
4. Problem Identification
The mediator will try to identify areas where both parties are in agreement and have common goals. This will help the mediator determined which issues could be settled first before moving on to the more difficult issues in dispute.
5. Bargaining and Generating Options
There could be multiple methods or options in the bargaining process that are determined by the individuals and issues of the parties. The mediator may propose scenarios or proposals and the parties take turns modifying while in caucus.
The mediator may decide to hold private sessions with both parties in order to move the negotiations along. This caucus session will be confidential. The caucus provides a safe environment in which to brainstorm and surface underlying fears. The goal of the session is to find some common ground by exploring lots of options, and to bring about possible solutions for the parties to think about. Parties can also entertain alternative solutions to their problems without committing themselves to offer the solutions as concessions.
6. Reaching an Agreement
Once both parties are committed to achieving an agreement, the mediator will normally begin exploring potential solutions with each party. This process will go back and forth until it leads to a final agreement. The reason for this process is to diffuse any conflict and provide both parties a new basis for a positive relationship going forward.
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