A Mediator is a trained facilitator who has taken training and is experienced in the process of bringing two sides together so that they can work out their own dispute.

Mediation is one of a number of procedures that have been developed that comprise the field of Alternative Dispute Resolution (ADR).  Other forms include arbitration, summary jury trials, and mini trials.

Arbitration is a somewhat informal trial type procedure conducted in front of an individual or a panel of individuals who can make a binding non-appealable decision.  A summary jury trial is typically conducted in front of a retired judge and in a compressed fashion with limited presentation in terms of time and a jury that renders what may be an advisory decision.  Mini trials are essentially that, a compressed trial which may or may not be binding.  Again these are conducted in front of a retired judge hired for the purpose.

Mediation is an assisted settlement conference.  You and your attorney, along with the opposing party and their attorney, will meet with a trained facilitator referred to as a “Mediator.”  The purpose of mediation is to reach an agreement that can be reduced to a binding contract to end a lawsuit or other dispute.

A Mediator is not a judge.

A Mediator has no authority whatsoever to make a decision binding on any of the parties.  A Mediator is merely a trained facilitator who has taken training and is experienced in the process of bringing two sides together so that they can work out their own dispute.  The Mediator will typically inform the parties that their day in mediation is their best opportunity to reach a decision that they control exclusively rather than have one imposed upon them by a court or jury or an arbitration panel.

The joint session.

Frequently the process will begin with what is known as a “joint session.”  In joint session the Mediator meets with all sides and explains the ground rules of the mediation, his or her qualifications, and the procedures for the day.  Sometimes the Mediator will allow the parties to make what is referred to as “opening statements.”  Typically this is an opportunity for both sides to state their position in the presence of the other side.  Some lawyers value this procedure as it is an opportunity to speak directly to the opposing party without the parties= attorney acting as a filter.  Sometimes lawyers can be not only verbose but aggressive in these presentations.  Some lawyers feel it is an opportunity to “scare” the opposing party into settling.  For this reason many Mediators today dispense with the opening session or at least with the opportunity for all the parties to make comments.

Breakout sessions.

After the opening session the sides will go into what is referred to as “breakout sessions.”  In these situations both sides have their own room which is theirs for the day or the half day depending on the length of the mediation.  At that time they will have an opportunity to speak freely with one another and also with the Mediator when the Mediator spends time with them.  The Mediator will typically move back and forth between the rooms of the two, three, or more parties as he/she attempts to understand the case better and craft a settlement.

Typically, statements made to the Mediator are completely confidential.  Unless the parties authorize the Mediator to do so, the Mediator will not disclose anything said in the mediation breakout rooms to the other side.  For this reason you should feel able to speak freely to the Mediator during this stage of the proceedings.