CHECKLIST

MEDIATOR’S OPENING REMARKS

INTRODUCTIONS

A. Calm the Parties (Set the Tone)

B. Establish Rapport
C. Thank/congratulate the parties for choosing process
D. Confirm authority to negotiate.

EXPLAIN BENEFITS OF MEDIATION OVER LITIGATION

A. Party self- determination vs. Third Party (Judge, Jury) directed outcome
B. Flexibility - can reach agreements that the Judge and Jury can’t - Apology, change parties’ future
conduct, provide new opportunities for parties
C. Time, Cost, STRESS (Of both living the problem and going through the trial experience)
D. RISK of losing it all (or even some) at trial vs. certainty of outcome they can both live with

EXPLAIN ROLE AS MEDIATOR

A. We will be neutral - what we will do for one side, we will do for both
B. We will be non- judgmental - (not judges - won’t ORDER anything)
C. Stress confidentiality during process and separately for caucus

EXPLAIN PROCESS

A. Inviting parties to make opening statements

B. Setting the agenda
C. Will be working together (Conference)
D. Will hold separate meetings with parties (Caucuses)
E. Hope to conclude with final agreement that will END dispute NOW

EXPLAIN WHAT IS EXPECTED OF PARTIES

A. Patience and courtesy

B. Flexibility (No line in sand) - be willing to compromise
C. Creativity - Think outside of the box

GENERAL REMARKS

A. Remind parties to use parliamentary language

B. No use of cellphones
C. No interruptions
 PARTIES’ OPENING REMARKS

CLIENT

A. Setting the tone, pleasantries

B. Perspective on the facts of the conflict and what have been the consequences of the conflict for
him/her.
C. Show empathy for the other party’s position
D. What he/she wishes to discuss
E. Show willingness to negotiate

ATTORNEY

A. Confirm ability to represent and relationship with client.

B. Clarify that he/she is not there to make legal arguments, only to protect client’s interests.
C. There to support the client by checking legal soundness of solutions and reality testing options
D. Quantifying losses sustained by his client
E. Clarifying issues that need to be discussed and aid in the agenda setting process/

CAUCUS (For Mediator)

A. Build a ‘team’ concept with each side

B. First discuss the strengths of the case
C. Weaknesses (concerns) of the case - stress the confidentiality of the discussion - nothing disclosed
to the other side without their consent
D. Judge/Jury - best case - worst case
E. How much will litigation cost? How long until litigation is resolved?
F. Status of settlement discussions
G. New demand or offer

CONFERENCING (For Mediator)

A. Set the tone - ‘listen’ to each other, don’t interrupt

B. Foster ‘discussion’ with open ended questions
C. Encourage a willingness to ‘explore’ the problem vs. ‘debate’ the issues
D. Encourage advocates and parties to direct their remarks to the other party rather than the
mediators
E. Encourage parties to attack the problem, not the person
F. Mediator to keep control - terminate by suggesting caucus if discussion is becoming counter-
productive or destructive

CONCLUDING THE SESSION (For Mediator)

A. If agreement is reached, go over the details - writing signed by all present

B. If no agreement is reached and time has run out, review what has been agreed upon and what
issues remain to be covered - schedule another session
C. If agreement is unachievable, confirm any partial agreement, wish the parties luck, and again
remind them that the session was confidential and should have no effect on their pending dispute
(trial, hearing, arbitration, tribunal, administrative hearing, etc.