Mediation is a highly effective form of settlement conference in which a trained and skilled third party neutral facilitates communication, reconciliation and negotiation between the parties, in order to achieve the voluntary and mutually acceptable resolution of disputes. Mediation can most easily be understood as facilitated communications toward an agreement.
Mediation is different from other forms of dispute resolution in that the parties participate voluntarily, and the mediator has no authority to make a decision. The decision making power rests in the hands of the parties. Judges make decisions that are imposed on parties. Mediators do not. An agreement is reached at mediation through the facilitated negotiation process.
Mediation is a confidential process. The mediation session is held in private. The sessions are not tape-recorded or transcribed. At the conclusion of the mediation, the Mediator destroys any notes she took. The Mediator will not, and cannot, disclose any information revealed during the mediation to third parties. The communications by the parties cannot be introduced as evidence in any arbitral, judicial or other proceeding.
Mediation normally begins with a joint session with all parties and their counsel. The joint session provides an opportunity for each party, either directly or through counsel, to express their views on issues to the other party. The joint session is intended to begin the settlement process so statements during this session should not be derogatory or provocative.
After the initial joint session, the parties break up into separate groups or caucuses, where the majority of the negotiation process takes place. The Mediator will have private and confidential caucuses with each of the parties and their counsel to explore interests and settlement options. She goes back and forth between the caucuses, carrying various settlement proposals and communicating important information between the parties. The Mediator keeps information obtained in the private sessions confidential unless she is authorized to disclose it to the other party.
Once a settlement is reached, a written agreement is signed before the parties leave the mediation.
