What Happens During a Typical Mediation Session?
Mediation sessions take place in a conference room or office. Your attorney, if you have one, will be helpful in explaining the legal principles involved. If you have retained an attorney, he or she may be at the session or available by telephone.
Whether or not your attorney attends the session is up to you. Some factors influencing your decision include the level of conflict between you and the other party, the balance of power, the degree to which you are prepared to negotiate on your own behalf and who you choose as your mediator. Will your mediators push you to an agreement or will they help you build the best agreement possible for your situation? Here are some possible options to the attorney attending the session:
-
Attorney is not present and reviews an agreement if one is reached. When an agreement is reached you have time to have it reviewed by an attorney. In some jurisdictions it is 3 days and 10 days in others. You and the other party can agree on the number of days needed to have the document reviewed.
-
Attorney attends the mediation to give an "opening statement" then leaves and is available by telephone.
-
Attorney is available by phone throughout the day and you can check in with him/her to discuss the various points of the agreement.
-
Attorney is available via fax and phone and you fax the agreement prior to signing to him/her while you are still in the session and discuss any concerns.
-
Attorney is present throughout the entire mediation session and you pay both the mediators and the attorney.
Mediators have no power to impose a sentence or fine.
Mediators do not give legal or other advice.
The mediation process continues as long as the parties are willing to remain at the negotiating table, believe that resolution might be possible and that the process is working. The average mediation session lasts from two to four hours. Complex cases require more than one session. Please notify the mediator if you have personal time constraints. We provide snacks, and you are free to take breaks as needed. If the parties choose, food can be delivered so we can work through lunch.
With all decision makers present, the mediation usually begins with an introduction of the process by the mediator. During this introductory time the mediator gives an opening statement, and the parties complete the "Agreement to mediate" form and may establish ground rules. This is done with all parties at the table and is called a joint session.
You will then have an opportunity to present your opening statement where you identify concerns and issues that are important to you. Mediation gives you the opportunity to use creative practical techniques to address each issue individually, be heard and have more control over the outcome of your case than would be possible in the courtroom.
Sometimes the mediator has individual meetings with the parties in separate rooms. This is called a caucus. The mediator may break into a private caucus after opening statements, at the request of either party or when s/he feels it would assist the process. During this time you may ask the mediator to keep certain information confidential that you may not be ready or willing to reveal to the other party.
Once you reach an agreement, you will commit it to writing. The mediator will assist you with this process. You will take a copy of the signed agreement to an attorney who will put it in legal form. You may file it with the court yourself, in accordance with the requirements of your jurisdiction.
Possible Outcomes:
-
Full Agreement a comprehensive written agreement is drafted
-
No agreement- right now- You agree to move forward with litigation. You may choose to return to mediation at any point in your dispute.
-
Partial Agreement- You agree on some issues and you reserve other issues to be heard by the judge.
-
Temporary Agreement- You can "test out" an agreement to see if it works for you. The parties define the time period for the temporary agreement. You can add contingencies that act as "triggers" for other actions.
-
Continuing the Session- It may take more than one session to resolve your issues. You may need to gather more information such as financial records, appraisals etc.
-
Dismissal- Oftentimes information is conveyed for the first time in mediation. With this new infromation sometimes the complaintant chooses to dismiss thier lawsuit.
