As discussed in my previous blog, mediation is a process where both parties come together in front of a neutral third person, either a private mediator or a Supreme Court approved court mediator, and try to resolve their case and reach a fair result. But what exactly happens in mediation?
Whether you are participating in small claims mediation or a circuit case mediation, the procedure is quite similar. Initially, the mediator will give an opening statement to both parties explaining his/her role as the mediator and give any qualifications they may have that are pertinent to the mediation. The mediator will also discuss caucus options, where the parties divide up and the mediator speaks to the parties one-on-one. Lastly, the mediator will advise what will happen if the case resolves or doesn’t resolve.
Generally, the Plaintiff will begin the mediation with an opening statement. Depending on the complexity of the case or the issues involved, this opening statement can either be a short summary of the Plaintiff’s allegations or can be as elaborate as a power-point presentation. Regardless of the style, the attorney is the only one who speaks. Also the attorney may provide copies of documents, notebooks outlining any presentations, or simply oral in nature. There is no set time usually for Plaintiff’s opening statement, but it should be long enough to get your point across but not too long, as if you are making an opening statement in front of a jury.
The Defendant has the opportunity next to present their side of the case and, like the Plaintiff, can do it in short oral form or elaborate with a power-point presentation. Again, usually only the attorney speaks at this point.
After both sides have given their opening remarks, it is common for the mediator to then caucus, or speak to one party at a time in more detail about their case and what they are seeking. The other side is removed to a remote location so that it cannot be heard what is being discussed. Some mediators keep both sides apart for the remainder of mediation; some will bring the parties back together occasionally to speak to one another. Caucus is an option only and is not required and can be waived by the parties if they choose to openly discuss resolution. Generally though, what is discussed with the mediator during a caucus will not be revealed to the other side unless permission is granted.
If the parties are able to reach an agreement, usually the attorneys will draft some form of a Settlement Agreement and have their clients sign it right then. Some mediators have forms already prepared for such an occasion. Otherwise, if the matter does not resolve, then the mediator will report that an impasse was reached and the case will proceed.
As always, please consult your attorney whether or not mediation is appropriate in your case.