1. Preliminary Arrangements

a. Selection of the mediator by the parties or their counsel which

Includes disclosure by the mediator candidates of any and all

possible conflicts of interest with the parties, their counsel or

other interested parties to the conflict. This might require

the parties to exchange names of mediator candidates and the

fee schedules and resumes of the candidates under

consideration;

b. Communication with the parties or party representatives via

letter or email to arrange the date, time and location of the

mediation and the disputed issues which will be covered by the

mediation process;

Important considerations during this stage of the process:

1. selection of a neutral location for the mediation;

2. brief description of the issues presented to the mediator

in writing;

3. decisions made regarding mediator fee arrangements;

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4. length of time needed for the mediation;

5. language of the mediation and whether or not interpreters

are necessary;

2. Mediator’s Introduction

a. Mediator’s explanation of the ground rules that will apply to the

process including:

1. time allotted to the process;

2. agenda for the process;

3. parties’ authority to settle;

4. parties acknowledge that they agree to mediate in good

faith;

5. housekeeping items such as where the restrooms and water

is located and when breaks will take place;

6. parties should not interrupt each other so everyone has an

opportunity to talk;

7. explain the role of the mediator and the mediator’s

qualifications;

8. explain that the mediation process is confidential;

9. explain what the caucus session is and its importance;

10. explain that the process should be calm and parties

should treat each other with respect and be civil;

11. this entire segment of the process is a time for the mediator

to build trust with the parties and their counsel and

demonstrate impartiality.

3. Opening Statements by Parties

a. Each party and/or party representative has an opportunity to

present the issues they believe are in dispute and their

positions on those issues;

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b. For counsel representing the parties this is an important opportunity to make an impression on the opposition by

preparing your presentation well to make your points

most effectively;

c. This is the time in which not only the lawyers make their

presentations but also the parties may make statements

as well.

4. Venting (this is an optional stage in the process)

a. The mediator may allow the party or party’s representatives to

Vent anger or frustration with regard to the disputed issues.

The mediator must be careful not to let this venting get out

of control because the parties may get so worked up/angry

that the process may terminate at this point instead of going

forward to resolution. Venting is sometimes a positive process

because the parties reveal their frustrations and rid them-

selves of these distractions early in the process so they can think more clearly and rationally about resolution of the disputed issues instead of how upset or angry they are.

5. Information Gathering

a. This is really the mediator’s opportunity to visit with each party

and party representatives in a separate caucus sessions. The

mediator can gather the facts as each party sees them and

determine where the parties agree on those facts and where

they differ;

b. The mediator should keep notes and attempt to determine which

interests the parties have that are similar;

c. This part of the process may be most beneficial when the parties

are separated into caucus sessions/separate rooms so they

may speak freely about their concerns;

d. The mediator must seek the permission of each party and his/her

counsel when in a caucus session to reveal or share this

information with anyone else;

e. The mediator must keep all information learned from the parties

confidential unless given express permission to share it with the other parties.

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6. Issue & Interest Identification

a. Again the mediator’s responsibility is to listen to the parties

and their representatives about the issues which they believe

are in dispute. The mediator takes this opportunity

to learn the positions and underlying interests of the parties on

the issues.

b. The mediators questions to the parties and their counsel are

important and should be asked in a neutral manner

including restating what the parties have said to make

sure that the mediator understood what was said prior

to continuing the process.

7. Agenda Setting (this is an optional stage of the process)

a. Once the issues and interests are identified, the mediator with

input from the parties and their representatives sets an

agenda for consideration of each issue and the interests of the

parties. The agenda also includes consideration of possible

resolutions for each of the issues.

8. Caucus or private session (this is an optional stage of the process)

a. The mediator conducts a caucus or private session with

each of the parties and/or party representatives to gather facts,

identify interests and issues, setting the agenda for

consideration of the issues, and soliciting resolution options;

b. These sessions can be very important times to learn the interests

of the parties;

c. Parties feel at ease and more willing to share information in the

private caucus sessions;

d. The mediator should emphasize the confidentiality of the process

and ask permission to disclose information revealed to

him/her;

e. The mediator should explain to the parties and their counsels that

it is possible that he/she may spend more time with one of

the parties or another but that does not mean the mediator

favors that particular side – only that more time may be

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needed for the discussion. This is not an indication of

partiality.

9. Option Generation

a. This is one of the most important parts of the mediation process

because the mediator explores with each of the parties and

their representatives various options for the resolution of the

issues in dispute. The mediator should keep a written record of the options discussed;

b. The mediator should work through each issue in dispute in

an attempt to resolve the dispute;

c. The mediator should encourage the parties to think outside the box

and creatively;

d. The mediator must keep in mind that the parties make the

agreement and resolve the issues not the mediator.

10. Reality testing (this is an optional stage in the process)

a. Once the mediator has gathered the resolution options, the

mediator with the assistance of the parties and the

parties’ representatives should test whether the options

discussed are feasible and whether or not the options can

actually be executed once the mediation is completed.

b. The mediator should ask the parties the question: Can the parties

honor the terms of the agreement?