What is Mediation?
Mediation is a voluntary process facilitated by a neutral third-party (the mediator). The mediator assists the parties in productive and meaningful negotiations with the goal of reaching a mutually acceptable agreement. The mediator acts as a catalyst who focuses the parties on their interests rather than on the conflict and the positions they (or their attorneys) have taken. An effective mediator is adept at defusing anger and improving communication between the parties. Unlike arbitration or litigation, the parties themselves rather than a detached decision-maker such as an arbitrator, judge, or jury determine the outcome of the dispute. The mediator does not act as legal counsel or give legal advice to either side.
A mediation typically begins with all parties present (joint session) where the mediator makes an opening statement. In this opening statement, the mediator traditionally explains the mediation process, procedures, and ground rules for the mediation. During the opening statement the mediator also discusses the stages or rounds of negotiation (which consist of a demand and a counteroffer), the mediator's role, and the confidential nature of mediation. The mediator then distributes a confidentiality agreement for all present to sign. This agreement provides for the confidentiality of all discussions that occur during the mediation. Thereafter, each party will have the opportunity to present his or her side of the story without interruption.
At this point, depending upon the circumstances and the relationship between the parties, the mediation will either continue with all parties present or, in the alternative and more commonly, the mediator will meet separately with the parties in confidential "caucuses" in order to acquire a better understanding of the underlying issues of the dispute. The mediator will seek to discover areas of agreement and build upon them in order to create an atmosphere of optimism and work diligently with the parties toward settlement.
During the caucus, confidential information is often disclosed to the mediator. This information will not be divulged to the opposing party or parties without prior consent. During the caucus, the mediator will identify and discuss the strengths and weaknesses of the positions taken by each side, as well as explore the risks and possible outcomes of the case should the matter proceed to trial. The mediator will help the parties and their counsel gain a better understanding of both sides of the various issues. The mediator will also compare scenarios of settlement at the mediation versus going to trial, and will explore the many possible outcomes at trial.
The mediator will assist the parties and their counsel in generating and exchanging proposals for settling the case either in caucus or in joint session. When the parties reach a settlement agreement, the mediator will bring all the parties together to summarize the terms of the agreement and assist in drafting a written agreement which will be an enforceable contract if the parties so agree (under California Evidence Code Section 1123).