I've spent the last week in mediation. Mediation as an advocate for a party, then mediation as the mediator, capped off with attending an advanced mediation training program. This prompted me to write a "what to expect in mediation" handout for clients. When mediating for a client, I always have a pre-mediation meeting to carefully explain the process but a written handout reinforces the verbal. The handout is long; however these are some of the important takeaways:
GOALS
Your mediator’s goal is to help resolve your dispute. Your lawyer’s job is to offer advice as to reasonableness, courtroom scenarios, advantages and disadvantages of compromise, litigated outcomes, and costs. Your mediator is not so much concerned about the “equities” of the resolution; instead, your mediator is invested in facilitating a resolution.
CHOICES
This process of mediation is all about making choices. Your lawyer will give you information and advice, but you will need to make the decisions. These decisions are all yours – no one can tell you what to do or force you to choose one outcome or another.
GIVE-AND-TAKE
In a settlement, both sides have to compromise, and both usually feel they have given up too much. This is universal, regardless of the issue, the strength of the parties (or their weaknesses) or the other factors in a mediated case. No one walks away happy.
TOGETHERNESS IS OVERRATED.
Most of the day is spent in separate rooms, apart from the other side. Joint sessions may occur but they are rare. Joint sessions are loaded with conflict, some smoldering, some overt. Caution.
THE MISSING PIECES
The start of a mediation is often composed of an exchange of information, a gathering of the "puzzle pieces,” lists of items, requests for information, and corrorborating documents.
PUFFING
The first proposal by each side is puffery – a “best day-in-court offer.” These “first offers” get the ball rolling but they often prompt high emotions. Take a moment, count, breathe, vent, breathe, and move on to a counterproposal.
THE FOREST AND THE TREES
When everyone’s had a say, deals start to form. Folks move away from the past, who said what to whom, finger-pointing and blame. Disputes about the "truth" or "fiction" of individual values, individual expenses and income amounts fade, and the focus turns to specific proposals and counterproposals. This is where the settlement occurs.
ARM TWISTING
You may question your mediator’s impartiality when you are asked to make concessions. This is normal. Your mediator is pushing the other side just as hard, asking them just as many questions, pushing towards compromise.
RULES… IN A KNIFE FIGHT?
Offers to compromise are confidential. Your mediator cannot be a witness. BUT, statements by a party may be used by the other side after an impassed mediation to ask for more information, for more discovery, or in trial. So long as you designate what information you want kept confidential, your mediator has an ethical obligation not to disclose designated confidential information to the other side.
DAY TURNS TO NIGHT
Your mediation “day” will be long. It might be 8 or 10 hours (or even more sometimes). Your mediation day will be physically exhausting and emotionally exhausting. There will be long periods of “downtime” while your mediator is spending time in the other room with the other side. Use this time to work on another proposal in anticipation that the proposal you’ve made is rejected or tweaked. Your mediator may not provide snacks or food that you can eat. Bring snacks.
WE HAVE A DEAL
Once an agreement is reached, your mediator may outline the specific terms into a “Mediated Settlement Agreement.” You and your lawyer will carefully review this document and if you are satisfied with your choices and decisions, and satisfied that the Agreement correctly outlines the terms you have agreed to, you will be asked to sign the Agreement. You mediator will notarize this Agreement. This document is a contract between you and the other party, and can be enforced using contract principles.
GOALS
Your mediator’s goal is to help resolve your dispute. Your lawyer’s job is to offer advice as to reasonableness, courtroom scenarios, advantages and disadvantages of compromise, litigated outcomes, and costs. Your mediator is not so much concerned about the “equities” of the resolution; instead, your mediator is invested in facilitating a resolution.
CHOICES
This process of mediation is all about making choices. Your lawyer will give you information and advice, but you will need to make the decisions. These decisions are all yours – no one can tell you what to do or force you to choose one outcome or another.
GIVE-AND-TAKE
In a settlement, both sides have to compromise, and both usually feel they have given up too much. This is universal, regardless of the issue, the strength of the parties (or their weaknesses) or the other factors in a mediated case. No one walks away happy.
TOGETHERNESS IS OVERRATED.
Most of the day is spent in separate rooms, apart from the other side. Joint sessions may occur but they are rare. Joint sessions are loaded with conflict, some smoldering, some overt. Caution.
THE MISSING PIECES
The start of a mediation is often composed of an exchange of information, a gathering of the "puzzle pieces,” lists of items, requests for information, and corrorborating documents.
PUFFING
The first proposal by each side is puffery – a “best day-in-court offer.” These “first offers” get the ball rolling but they often prompt high emotions. Take a moment, count, breathe, vent, breathe, and move on to a counterproposal.
THE FOREST AND THE TREES
When everyone’s had a say, deals start to form. Folks move away from the past, who said what to whom, finger-pointing and blame. Disputes about the "truth" or "fiction" of individual values, individual expenses and income amounts fade, and the focus turns to specific proposals and counterproposals. This is where the settlement occurs.
ARM TWISTING
You may question your mediator’s impartiality when you are asked to make concessions. This is normal. Your mediator is pushing the other side just as hard, asking them just as many questions, pushing towards compromise.
RULES… IN A KNIFE FIGHT?
Offers to compromise are confidential. Your mediator cannot be a witness. BUT, statements by a party may be used by the other side after an impassed mediation to ask for more information, for more discovery, or in trial. So long as you designate what information you want kept confidential, your mediator has an ethical obligation not to disclose designated confidential information to the other side.
DAY TURNS TO NIGHT
Your mediation “day” will be long. It might be 8 or 10 hours (or even more sometimes). Your mediation day will be physically exhausting and emotionally exhausting. There will be long periods of “downtime” while your mediator is spending time in the other room with the other side. Use this time to work on another proposal in anticipation that the proposal you’ve made is rejected or tweaked. Your mediator may not provide snacks or food that you can eat. Bring snacks.
WE HAVE A DEAL
Once an agreement is reached, your mediator may outline the specific terms into a “Mediated Settlement Agreement.” You and your lawyer will carefully review this document and if you are satisfied with your choices and decisions, and satisfied that the Agreement correctly outlines the terms you have agreed to, you will be asked to sign the Agreement. You mediator will notarize this Agreement. This document is a contract between you and the other party, and can be enforced using contract principles.