The mediation process consists of multiple stages which can vary depending upon the nature and type of the particular dispute, as well as the method, approach and style of the particular mediator. The following is a description of the different stages in the mediation process based upon the specific procedures adopted by LOI, as well as the specific method and approach practiced by all of the mediators on our panel.
Stage 1: Mediator Selection and Mediation Agreement
It is important to select a mediator who is suitable for a particular case from the standpoint of both their experience or expertise in dealing with the specific type of dispute and the approach or method used by them in their role as mediator (their “orientation”). In general, a particular mediator’s orientation, as well as the strategies and techniques which define their orientation, can be classified along a spectrum and described as “more facilitative” or “more evaluative”. Mediators who favor a more “facilitative” role tend to encourage the parties to play a more active role themselves in assessing the strengths and weaknesses of their case, predicting the possible outcomes of litigation and creatively exploring options for settlement. Mediators who favor a more “evaluative” role tend to provide their own opinions regarding the strengths and weaknesses of the case, offer their own predictions with respect to the likely outcome of litigation and make specific recommendations for settlement for the parties to accept or reject. Depending upon the nature of the dispute and the relationship between the parties and their representatives, a mediator’s experience and orientation are both important to consider in the selection stage and can play a critical role in the success or failure of the mediation process.
After the parties have selected a mediator from our panel to assist them in their negotiations, our administrative office can coordinate scheduling for each mediation session. Please refer to our Scheduling Page in the event that you would like to determine available dates for mediation or schedule a session on-line. A written confirmation package from our office includes specific preparation instructions, directions to the appropriate location and a Mediation Agreement to be signed by the party or their representative. A copy of our standard Mediation Agreement follows this description.
Stage 2: Information Exchange and Pre-Mediation Submissions
The parties are encouraged to engage in a voluntary exchange of information and documents necessary to sufficiently identify the areas of dispute, develop the issues for discussion and explore options for settlement which address the real interests of all parties and are based upon objective criteria. While complete disclosure is neither required nor expected by the mediator, an adequate exchange of information is critical to the mediation process.
Prior to the first session of mediation, each party or representative is instructed to submit to the mediator a Case Overview or Position Statement which should include a summary of their claims or defenses, the facts, evidence (including expert opinions) and legal authority which support each claim or defense, the nature and extent of any damages sought by any party and a description of any other legal or equitable remedies which might be applicable. Although it is optional for the submitting party to include exhibits as part of their Case Overview, our mediators encourage the inclusion as exhibits of any materials that would assist them in understanding an important or critical issue in the dispute. Unless the parties otherwise designate, information contained in the Case Overviews is not assumed by the mediator to be confidential and should be disclosed to the opposing side.
Stage 3: Mediation Sessions
Each mediation session begins with a joint meeting attended by all parties and their representatives. Our mediators typically start with a brief discussion of the mediation process which is directed to the parties themselves, emphasizing the non-binding and confidential nature of the process, their complete control over the outcome and the focus on mutual interests and gains. Each party or their representative is then given an equal opportunity to summarize their case or position for the mediator, followed by mutual discussion when appropriate and as recommended by the mediator.
Following the joint meeting, the mediation session continues with a series of private meetings (“caucuses”) between the mediator and each party to the dispute for the purpose of expanding the exchange of information, an understanding of the parties' real versus stated interests, the discussion and development of the important issues and the exploration of options for mutual gain. Our mediators adhere to a more facilitative approach during these private meetings, with strategies and techniques designed to encourage active involvement by the parties and their representatives in creatively developing potential solutions to the dispute and settlement proposals which the mediator is then given authority to communicate to the other side.
If the parties are unable to make any substantial progress during the mediation in response to a more facilitative approach, the mediator may shift to a more evaluative approach and offer opinions with regard to the strengths and weaknesses of the parties’ positions, the likely outcome of litigation and the objective criteria which should be applied to evaluate each party’s position. However, the mediator will not offer opinions relevant to the settlement proposal of any party or independently make any settlement recommendation unless all parties agree to such a recommendation.
In the event that the parties jointly request a settlement recommendation from the mediator, it shall be made to the parties simultaneously in a joint meeting. The mediator will require each party or their representative to confidentially communicate their acceptance or rejection of the settlement recommendation exclusively to the mediator, who will then notify all parties if and only if there has been unanimous acceptance.
Stage 4: Final Settlement
If the parties are successful in reaching a settlement agreement during the mediation session, the mediator can draft a short written agreement which can then be executed by each party or their representative. When the terms of settlement are complicated and require lengthy or extensive settlement documents, the mediator will generally require counsel for the parties to draft the final settlement papers.
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