Alternative Dispute Resolution Law

Who Starts First In Mediation?

There is no set format for the actual mediation process. However, as a general rule, all mediations involve a series of joint and separate meetings. The first step is a joint meeting in which all sides meet with the mediator ­ who describes the mediation process and then reviews the ground rules for participation, behavior, and confidentiality. The participants also discuss issues such as the role the mediator will play, who will represent each side during the discussions, who has authority to sign a final settlement, and what documents will be exchanged. If litigation over the matter is pending, the disputants and the mediator may discuss what pre­trial activities and/or discovery will be suspended, and whether the court should be informed of the suspension and the mediation. If either side has any doubts about the mediator’s style or expertise, a substitute mediator may be suggested. Mediation rules are aimed at creating an atmosphere of cooperation and respect. They can include such things as agreeing to have only one person speak at a time, setting an agenda, limiting the scope of negotiation, defining the role of the mediator (this can range from a purely facilitative role to an evaluative one in which the mediator is permitted to offer opinions), defining the use of private meetings, agreeing what documents will be submitted to the mediator, establishing how confidentiality will be maintained, and stipulating how the sides will respond to media inquiries, if relevant. The initial meeting also serves as an open forum for the parties to explain their positions and express how they believe the case should be resolved. At this stage, the mediator begins to gather the facts, become familiar with the case, and assess the interests and perceptions of the parties. Each party also has an opportunity to rebut the other side under the supervision of the mediator, who may ask questions. If the mediator requests written statements from the parties and/or court briefs or documents that are part of pending litigation, another joint meeting may be scheduled to give each side an opportunity to prepare and gather these materials. In this case, the parties may wait until the second joint meeting to discuss their positions in the dispute.