What is Mediation?
Mediation is an informal process where the parties work with a mediator to try and resolve some or all of the issues in their dispute. Mediation is a confidential process where parties can feel secure talking through issues. Sometimes mediation results in a full settlement of a case. Sometimes the parties cannot come to a full agreement, but they can come to a partial agreement and reduce the time and money that will be spent in litigation.
What happens in mediation?
Every mediation is slightly different, and mediators have their own ways of doing things. But most mediations will follow certain procedures.
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Mediations may begin in a joint session or in caucus. A joint session is when everyone is together. A caucus is when the mediator is in a private meeting with one side. Whenever a mediator holds a caucus with one side, the mediator will also hold a caucus with the other side (or sides, if there are more than two sides to the dispute). Usually, domestic relations cases (divorces, child custody or support cases, etc.) will start in caucus and stay in caucus. General civil cases (personal injury, employment, contract, etc.) will usually start in a joint session and have caucuses as the mediator or parties deem useful. Probate cases vary based on who will be attending.
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Every mediation begins with an opening statement by the mediator. This is where the mediator introduces themselves, provides information about the mediation, and often provides certain information that is required by law when a mediator is authorized, registered, or certified by a governmental body.
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Attorneys and parties also have the opportunity to provide an opening statement. For tips and best practices in opening statements, see Tips for Success in Mediation.
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After opening statements, the mediator alternates talking to each side, gathering information, asking questions, and talking through issues in the case. While some mediations may stay in a joint session for the entirety of the mediation, most mediations end up in caucus, where the parties and their attorneys can talk openly with the mediator without worrying about the other side hearing. When attorneys are present, they may even ask the mediator to step away for a few minutes. Everything said in a caucus is confidential, and the mediator will not share anything with the other side unless they receive permission to share it.
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In some cases, the mediator may pull the attorneys into an attorneys-only session. In an attorneys-only session, the attorneys talk informally. There are various reasons for an attorneys-only session. Sometimes, the attorneys need to discuss a specific legal issue. Sometimes, everyone agrees that the attorneys should talk unofficially to see if they can come to a consensus on terms they would recommend their clients accept.
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The mediator will facilitate or relay questions, information, and offers/counter-offers from one side to the other until the mediation ends. A mediation can end in a full settlement, a partial settlement, stipulations, or an impasse.
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A full settlement is just what it sounds like. The dispute is fully resolved. The mediator may work with the parties or attorneys to complete required paperwork or a final settlement agreement. Otherwise, the mediator will work with the parties or attorneys to complete a short (often containing bullet-points) mediated agreement that includes details on how and by when the final settlement agreement will be prepared. Any agreement will be written down and signed by the parties.
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A partial settlement resolves some - but not all - of the issues in a case. For example, in divorce cases, the parties may agree on how assets and debts will be split, but they might not come to an agreement on parenting time or child support. When this happens, the issues that are not resolved in mediation continue on to a trial, hearing, or arbitration, depending on the type of case. Any issues that are resolved in the mediation, however, will be written down and signed by the parties.
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Sometimes, the parties cannot resolve any of the substantive issues in the case, but they can enter into stipulations regarding evidence or procedural issues in the case. Stipulations can simplify a case and allow a trial or hearing to be completed in much less time, saving the parties significant amounts of attorney fees. Stipulations are also written down, but they are signed by the parties and the attorneys.
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Not every case resolves in mediation. Mediation is a voluntary process. Even if a judge orders the parties to attend mediation and try to resolve the case, the parties are never required to reach an agreement. The only requirement is that the parties put in a good faith effort. At any time, a party, attorney, or the mediator can call an impasse. This means that the mediation ends without an agreement. When this happens, the case continues through normal court or arbitration processes, depending on the type of case.