The bailiff bangs three times and says, “All Rise! This Court is now in session, The Honorable Thomas A. Watson presiding! You may now be seated.”

That is how a typical courtroom hearing begins. Mediation begins differently.

“Hello. Are you Elizabeth Ferraro? Are you Richard Rafferty? I’m Tom Watson, the mediator. Will you both follow me into the conference room, please?”

The mediator’s low-key opening sets a tone of sensible informality that will continue throughout the proceedings.

Although mediation is conducted informally, it is a process that usually moves from one defined stage to the next, giving the disputants time to speak and listen to each other, sometimes meet privately with the mediator, and work together to find a solution to their dispute.

EXAMPLE: You are mediating a dispute over noise with the upstairs neighbor in your co-op apartment building. The mediator begins by explaining the purposes of mediation and the procedures to be followed. Then, you and your neighbor each have an opportunity to make an opening statement, explaining how you see the dispute. A short joint discussion follows, during which the mediator reviews the issues raised by both of you and helps you sort out the key con­cerns. Next, the mediator probably asks to meet with each of you privately to discuss your positions on the issues and your ideas for solving the problem. After shuttling back and forth to conduct several rounds of these private meetings (called “caucuses”), the mediator calls you back together to try to work out the details of a settlement in another joint discussion.

Mediators agree that mediation usually proceeds through these stages (or some version of them), but disagree on how many stages there are and what they should be called. As you have doubtless gathered from the title of this chapter, we divide the process into six stages, which we refer to as follows:

1. Mediator’s Opening Statement

2. Disputants’ Opening Statements

3. Joint Discussion

4. Caucus

5. Joint Negotiations, and

6. Closure.

WHERE'S STAGE FOUR?

Some mediators omit stage four, the private meeting or “caucus” between the mediator and each of the parties. Divorce and family mediators are particularly likely to omit the private caucus, preferring instead to keep family members together in order to help them jointly rebuild at least a measure of trust. (See Chapter 10 for more on divorce mediation.) Some community mediation centers also do not hold private meetings in cases that involve interpersonal disputes, fearing that separate caucuses may make one or both sides worry that the mediator is being unfairly influenced by the other.

The sections that follow will describe each of these stages in detail, using these three fictional cases as illustrations:

• CASE 1—The Noisy Neighbor. This is a neighbor dispute involving Ms. Ferraro, who is complaining of noise from late evening pool parties hosted by her backyard neighbor, Mr. Rafferty.

• CASE 2—The Missing Security Deposit. Ms. Sherman leased space in her industrial park to United Tea Bags, a company that sells tea whole­sale to local restaurants. The company has moved out, but Ms. Sherman has refused to return its security deposit because of dam­age she claims the company’s employees did to the offices before they left.

• CASE 3—Business Owners Fall Out. Mike Woo and Ted McDonald are co­owners of Big Slice Pizza, Inc., a restaurant. They have had a falling out over various issues of running the business, including pricing and employee relations. Each owns half the company. They have come to mediation either to work out their differences or to decide to end their partnership.

A.