MEDIATION STAGES The following is provided to give a proto-type. However, the stages, like other matters are subject to modification, revision and agreement by the parties to the Mediation. While Mediation is a process which progresses through several stages and each stage is to be an important contributor to a successful resolution of s dispute there may be therefore variances, based on the nature of the dispute, both within the procedural and the substantive natures of the dispute. I. Pre-mediation Case Development The time period before the actual mediation session is very important to a successful resolution of any dispute. It is during this period that the mediator establishes a relationship with the disputants and their counsel. The mediator helps the parties come to an understanding of interest-based negotiations. Additionally, the mediation process is explained and the practicalities of the time, place, participants, and necessary documents are worked out. The confidentiality of the mediation process is emphasized. In most cases, both the disputants and their attorneys sign a confidentiality agreement. Even if such an agreement is not executed, section 1152.5 of the California Evidence Code expressly excludes all communications made in the course of mediation from any civil proceeding. This confidentiality is essential for both open communications amongst the disputants and with the mediator. II. Opening The formal mediation session begins with the mediator introducing him or herself, the parties and their counsel. The mediator re-explains the mediation process including its confidentiality, sets the ground rules, and again obtains the disputants' commitment to the process. If the confidentiality agreement has not yet been executed, it is done before the next step begins . III. Issue Development The opening, each of the disputants is given the opportunity to explain his or her side of the dispute, without interruption by the other parties. The mediator assists in clarifying issues, identifies the interests of the parties, and isolating the areas of agreement and dispute. Often the mediator assists in the setting of the priority and significance of each of the issues. IV. Formation of Alternatives/Understanding of Interests Once the parties have communicated their accounts and identified the issues of the dispute, the parties need to consider alternatives to the positions that they had taken prior to mediation. Most of the time, the parties are separated and individual caucuses are conducted. Sometimes a joint "brainstorming" session is held to stimulate new ideas. During this period, the mediator may offer suggestions as to available options that had not been previously considered. The mediator probes into underlying and often unspoken issues by the asking of pertinent questions. V. Negotiation and Assessment Once the parties have identified their options, they can assess their merit and begin to negotiate their acceptance. Here, the mediator often serves to facilitate communication, tests realities, and offers encouragement to the parties. VI. Resolution The next phase of the mediation process is an extension of the negotiation and assessment stage. The negotiation process intensifies, as the easy issues are resolved. The parties trade with each other over the terms of the settlement until all issues has been resolved. VII. Closing The final step in the mediation process is the finalization of the resolution reached by the parties. This typically involves the parties or their attorneys in memorializing the agreement in writing. Each issue of the dispute is dealt with, item-by-item. All parties and their counsel then sign the written record. Once the agreement is executed, the mediation is over.
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