Anatomy of a Mediation

No two disputes are exactly alike, and the same is true for mediations. The personality and skill of the mediator, the temperaments of the parties, the volatility of the underlying issues, and countless other factors all affect how a particular mediation plays out.

1. Where Are Mediations Held?

Not surprisingly, mediation is usually conducted in a conference room. Typically, the mediator sits at the head of a longish table and the dispu­tants sit on either side, facing each other. Where the mediation confer­ence room is located and what it looks like will vary greatly, depending on what type of mediator or mediation service you are using:

• Community mediation centers often mediate at the center’s offices, typically in a downtown office building or in space provided by a government agency. It will probably be a bare-bones conference room, featuring pale green or yellow walls and a wobbly, wood­veneer table with folding chairs.

• Private dispute resolution companies generally hold mediations in fancier surroundings—often a suite of offices in an upscale office building or in the mediator-lawyer’s law firm. If the law firm or dispute resolution company is prestigious, you may find yourself seated in a high-backed, leather-upholstered chair facing the other party across a 12-foot mahogany table.

• Local and state courts sometimes conduct mediations in conference rooms at the courthouse.

• Private divorce mediators may work in downtown office buildings, suburban office parks, or even in their own homes. Their meeting rooms are designed to give couples a private and secure feeling. Rather than being “squared off” across a conference table as would be typical in a business mediation, a couple typically will be seated on a sofa, or in armchairs arranged around a coffee table.

When parties live a great distance apart and cannot travel to the same location, mediation sometimes can be conducted by telephone, through videoconferencing, or on the Internet. Online mediation has become an increasingly popular way to resolve small consumer dis- putes—particularly disputes over products or services purchased over the Internet—and to continue mediations that began in person.

2. Mediation Rules

Though mediation is much less formal than litigation and arbitration, there are a few rules. Your mediator or mediation service should give you written rules well in advance of your first session. Read these carefully ahead of time, because you’ll have to sign an agreement at the mediation, pledging to abide by them. If you have any questions, contact the media­tor or mediation service, or review them with a lawyer or law coach.

Typically, mediation rules are a couple of pages long and cover these topics:

• Matters of procedure, including what forms you have to fill out to begin the mediation process and how the mediator will conduct the mediation

• Confidentiality, stating that everyone involved in the mediation agrees to keep whatever is said confidential, and that the mediator will not disclose what is said during mediation in any later court or arbitration proceeding

• Fees, including how much each party will pay and the deadlines for payment, and

• Liability, usually stating that the mediator or mediation service is not legally responsible for problems arising out of the mediation.

Mediation rules are discussed further in Chapter 5, Section A.

HOW LONG DOES MEDIATION TAKE?

Depending on the type of mediation, mediators will often keep a mediation going as long as they and the parties believe progress is being made. If a mediation that begins at 9:00 a.m. produces quick results, the session might be over by 11:00 a.m. If the parties take longer to reach an agreement, the session may continue (after a lunch break) through the afternoon or longer.

Many cases that go to mediation, such as consumer claims, small business disputes, and auto accident claims, are resolved after a half day or, at most, a full day of mediation. Multiparty cases last longer: add at least an hour of mediation time for each additional party. Major business disputes—such as complex contract and construction cases that involve many issues, parties, and witnesses—may last several days or more.

Private divorce mediation generally takes quite a bit longer—both because the couples usually have a number of issues to resolve and because their ability (and desire) to communicate and compromise is likely to be at a low ebb. Some court-sponsored divorce mediation programs address only child custody issues and are limited to one or two sessions. However, divorcing couples who choose private mediation often aim for a comprehensive settlement, including division of marital property and spousal maintenance, as well as child custody, visitation, and support. Resolving all these issues generally requires half a dozen or more sessions spread over several weeks or months. (See Chapter 10 for more information on divorce mediation.)

Given the uncertainty over how long your mediation will last, try to clear your calendar for the whole day so you will be able to stay as long as you need to. Put another way, you should park in a lot, not at a meter.

3. The Six Stages of Mediation

Mediation does not consist simply of sitting around a table, talking to the mediator and the other party. Instead, mediators structure the process to give the disputants time to speak and be listened to, meet privately with the mediator, and work together toward a settlement. Although mediators agree that mediations progress through distinct phases, they don’t always agree on how many phases there are (some say five, others six, and still others seven).

STAGE 1: Mediator's Opening Statement. After everyone is seated at the conference table, the mediator will make introductions, review the goals and rules of the mediation, and encourage each side to work coopera­tively toward a settlement.

STAGE 2: Disputants' Opening Statements. Both parties will be invited to tell, in their own words, what the dispute is about, how it has affected them, and how they would like to see it resolved. While one person is speaking, the other will not be allowed to interrupt.

STAGE 3: Joint Discussion. At this point, the mediator may try to get the parties talking directly about what was said in the opening statements. This is a time to identify the issues that need to be addressed in the mediation.

STAGE 4: Private Caucuses. Often considered “the guts” of mediation, the private caucus gives both parties a chance to meet privately with the mediator to discuss the strengths and weaknesses of their positions and come up with new ideas for settlement. Typically, the mediator will ask one party to remain in the conference room while the other party waits in a nearby room or in the reception area. The mediator may caucus with each side just once, or several times back and forth, as needed.

Caucusing is not used in every mediation. It is commonly omitted in divorce mediation because divorcing spouses often experience a break­down in trust, and the mediator doesn’t want to exacerbate the problem by separating the spouses and creating anxiety about what either might tell the mediator in private. For the same reason, some community mediation centers do not use caucusing in cases involving interpersonal conflicts. And some mediator rarely caucus in any type of dispute, believing that the process is more effective when everyone involved is present at all times.

STAGE 5: Joint Negotiation. After caucuses, the mediator may bring the parties back together to negotiate directly.

STAGE 6: Closure. This is the end of the mediation. If an agreement has been reached, the mediator may draft its main provisions as the parties listen. The mediator may ask each side to sign a written summary of their agreement or suggest they take it to their lawyers for review. If no agreement was reached, the mediator will review whatever progress has been made and advise the parties of their options, such as meeting again at a later date, going to arbitration, or going to court.

Chapter 6 explains each mediation stage in detail.

THE ROLE OF LAWYERS IN MEDIATION

If your dispute has not yet blossomed into a lawsuit and you haven't already retained a lawyer, there's no need to hire one just for the mediation. In most cases, you won't need to bring a lawyer to the mediation. This is because you are trying to work out a solution to your problem with the other party, not trying to convince a judge or arbitra­tor of your point of view. Usually you will understand the problem and your own needs better than anyone else, including a lawyer. Because mediation doesn't have a lot of rules (and the rules that do apply are straightforward), and the entire proceeding is conducted in plain English, you don't need special training to figure out how to do it.

Lawyers can be helpful, however, as consultants before and after the mediation. If your case involves substantial property or legal rights, you may want to meet with a lawyer before the mediation to discuss the legal consequences of possible settlement terms. You may also want to condition your agreement to a settlement proposal on a lawyer's review afterwards, to be sure it does not affect your legal rights in any way you did not intend.

If you’re already working with a lawyer—because you’re mediating a lawsuit or a dispute that may shortly turn into one—then your lawyer will probably attend the mediation. In this situation, your lawyer can also handle or help you with some of the work, including making the opening statement and writing a mediation brief, if necessary. Even if you have a lawyer, however, you should still plan to be an active partici­pant in the mediation. After all, it’s your dispute—and only you can decide whether to settle and on what terms. For more on lawyers and mediation, see Chapter 13.

D.