What is a Typical Process?
Mediation processes can vary greatly depending on the mediator, parties, or issues. Face to face mediations may suggest one process; Shuttle mediations with parties in different locations may suggest another. Below is a common scenario but by no means the only one.
Often one party contacts the mediator or intake person who will help determine if the dispute is appropriate for mediation. When mediation appears to be appropriate, the other party can be invited to participate and a date and time determined. The process of intake can be complex and if significant time is required to establish the mediation, clients should expect to compensate the mediator for services. Sometimes the intake requires more time than the actual mediation.
Mediators usually spend some time before or at the beginning of a session explaining the process, roles, and expectations and signing an agreement to mediate. They then have each client share some history of the dispute and what they hope to accomplish in the mediation. Typically the mediator will summarize the statement of each party to be certain of a clear understanding. The mediator may inquire further on some issues to assure clarity and understanding.
Commonly mediators next move to an agenda or list of issues to be resolved and parties agree on where to begin. Issues by issue agreements are negotiated. Depending on the nature of the conflict agreements are captured in writing as they are made or at the end when all issues have been verbally resolved.
The written agreements take many forms and can range from contractual language to written understandings. The nature of the conflict and needs of the parties will determine the appropriate form and content of agreements. Parties can agree that they intend the agreements to be enforceable. Agreements sometimes affect legal rights and the mediator may ask that parties obtain legal services before signing binding agreements. Mediators are careful not to advocate for individual parties and when an attorney serves as an impartial mediator they often advise clients to seek independent legal advice prior to committing to an agreement. Clients are often encouraged to craft agreements in their own words to assure their intent is appropriately captured.