The Mediation Process

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 Who are present?
The parties involved

The mediator(s)

The lawyers (if desired by the parties) – to advise their

clients between sessions and before the final agreement is

signed

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 The Mediation Session
Time ~ about 2 hours

Elements of the Mediation Process

Opening Conversation
Uninterrupted Time
The Exchange and Private Caucusing
Setting the Agenda
Building the Agreement
Making the Agreement

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 Model of Mediation
PREPARATION

PAST
Opening Conversation
Uninterrupted Time 2
hours
Exchange & Private Caucus
Agenda Setting
Building the Agreement

Agreement & Closure

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FUTURE
 Stage 1: The Opening Conversation
Welcome and words of encouragement
Purpose and goal of parties in mediation
Role of the mediator/parties
Confidentiality
What to expect
Ground Rules
Answer questions and establish buy-in
Consent to proceed

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 Why the Opening Conversation is Important
It prevents failure often due to:
 Parties’ lack of knowledge about what is expected of
participants
 Unwillingness of parties to participate
 Parties’ lack of understanding of the process
It establishes what can be expected of the
mediator
Puts lawyers in place
It saves time

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 Stage 2: Uninterrupted Time
Set a courteous, unhurried tone
Explain listening and speaking
Give each person his turn to speak
Listen to what each person has to say
Select someone to start (at random)
Protect each person’s speaking turn
Formally end each turn; check that each person
is finished
Thank them and move on

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 Stage 3: The Exchange
Keep control of the session

Include each person

Ask necessary questions

Listen for interest and issues

Refrain from finding solutions yet

Watch for moments of reconciliation

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 When to Use a Private Caucus
FOR SUPPORT FOR CONTROL
 To separate, cool off, or  Change the mood or
calm down angry people direction of the session
 Give shy or fearful people a  Interrupt disruptive or
chance to speak unhelpful behavior
 Help people thing through  Confront people privately
what they want

FOR SOLVING THE PROBLEM

 Receive private info
 Give shy or fearful people a chance to speak
 Help people thing through what they want
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 Private Caucus: How to Conduct It
Before mediation starts, decide where separate sessions will
take place and where parties will wait
Always meet with each party

Call for separate meeting in a matter-of-fact tone

Be clear in your own mind about purpose and goal

Assure them of confidentiality

Stay focused

Ask permission of what you can reveal to other party

Take notes with you when you leave the table

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 Stage 4: Setting the Agenda
Summarize what has been accomplished

List the issues they need to negotiate:

 Organize your notes and select key issues (focus on issues that:
need joint decision, mentioned often, emotionally charged, potentially
negotiable, key to durable solution)
 Use positive, impartial language
 Reflect each one’s concerns
 Present problems as shared concerns

Agree on the agenda ~ check for accuracy and completeness

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 Identifying Issues
“Did you think you can railroad us “We need to talk about how
to do things just because you are decisions are made. Does this
the boss?” sound right to you?”
“The problem with you is your
inability to work with as a team.”

“You are rude and mindless of your “I think the main issues are
role as my subordinate.” how to communicate work
“You are not my Boss, Jean is. She tasks and how you treat one
assigns me my work. Don’t dump another. Is there anything else
your work on me just because you might want to add?”
you’ve been here longer than
everyone else.”

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 Stage 5: Building the Agreement
Work through each issue
 Elicit ideas
 Evaluate and refine alternatives
 Test for agreement and explore consequences
 Write down tentative agreements

Keep discussion on track

 Expect for tacking back and forth
 Refer back to the agenda to keep all in focus
 Stay within the time

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 Can Mediators Suggest Solutions?
Yes and No.
Reasons Why Mediators Should Hold Back Making
Suggestions:
To show trust that parties know better
To prevent them from feeling incapable
To prevent them from not taking responsibility
To give them more stake on the solution
To prevent them from feeling uncomfortable
To protect the mediator from taking blame

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 Stage 6: Writing the Agreement
Review each point of the
agreement, watching out for its AGREEME
NT
workability, wording,
acceptability, finality and
conditionality
Write out the final copy, read
aloud
Have every person present sign
and give each party a copy

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 Writing a Sturdy Agreement
Elements of a Good Agreement
1. Detail specifics ~ who, where, when.
2. Be even handed.
3. Make it final and unconditional.
4. Use clear, familiar language.
5. Emphasize positive action.
6. Deal with pending proceedings.
7. Provide for the future.
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 Thank You!

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