11. Bargaining and Negotiation

a. When the various options for resolutions are on the table, the

mediator must assist the parties and their representatives

through the bargaining and negotiation process to determine

which of the resolution options can be agreed upon by the

parties. This part of the process requires give and take and

most likely each side will have to give up something in order

to receive the benefit of something else.

b. Many times the parties are negotiating monetary amounts so

the mediator may shuttle back and forth between the caucus

rooms carrying information and offers from room to room

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as the parties work to settle on compensation that is acceptable to all.

12. Agreement

a. If the parties reach a resolution of all or part of the issues in

dispute then it is the responsibility of the mediator to prepare

a formal, written agreement which the parties approve and

sign while they are at the mediation process. The general

rule is that the parties should not be allowed to leave the

process until they approve and sign the agreement in a

written document. All parties and party representatives

should leave the mediation with a copy of the written and

approved agreement which then becomes a binding contract

between or among the various parties;

b. Many times if the parties and their representatives leave the

mediation before a written agreement is signed, someone

will change his or her mind or realize that he/she is not

bound by the oral agreements made and terms reached

and the extensive work done during the mediation is lost.

13. Closure

a. When the agreement is approved and signed, the mediator

should congratulate the parties and their representatives

for their hard work and diligence and wish everyone good

luck in their future endeavors. Also the mediator usually

thanks the parties for allowing him/her to serve as mediator in

the matter.

D. Another 12 Step Process for a Mediation is as follows:

1. Initial contacts with the disputing parties;

2. Selecting a strategy to guide the mediation process;

3. Collecting and analyzing background information;

4. Designing a detailed plan for mediation;

5. Building trust and cooperation;

6. Beginning the mediation session;

7. Defining issues and setting an agenda;

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8. Uncovering hidden interests of disputing parties;

9. Generating options for settlement;

10. Assessing options for settlement;

11. Final bargaining; and

12. Achieving formal settlement.

E. More Details Regarding Mediation Process

1. At the initiation of the mediation, the mediator always provides an overview of the mediation process in order to clarify the expectations of the parties and the and their representatives. In addition to defining particular ground rules and procedures, the mediator utilizes this time to create a constructive atmosphere for establishing trust, communication and cooperation between the parties. At this time, the mediator welcomes and responds openly to all questions and concerns of all the participants.

Once the mediation procedure has been explained to everyone’s satisfaction, the parties typically are allowed an “opening” statement of how they define the dispute. Usually, the person who initiated mediation, or in the case of litigation, the plaintiff, begins. The other party follows with opening remarks. In court-ordered matters, or when lawyers represent the parties, the opening remarks may be provided by the attorney, the party or a combination of both.

Generally, the mediator will ask the parties not to interrupt each other’s opening statement. The mediator allows interruption only if he or she feels constructive ventilation is absolutely necessary. Hidden interests, true agendas and areas of possible agreement may be discovered at this time by an active, listening mediator. Venting anger or frustration is considered important to the process for this reason. Venting may occur at any time, and a wise mediator will utilize it in uncovering issues and expanding the areas of possible agreement. The mediator can always direct the mediation and/or reference the “ground rules” if one of the parties is abusive in his/her interruption or anger.

An astute mediator often times will be able to discover areas of concerns and interests of the parties in their opening statements. The mediator should bring these to the table for discussion. Open-ended questions followed by restatements of parties’ interests are techniques often utilized at this stage of the process.

The discovery of underlying interests and concerns of the parties gives the mediator the power of knowledge and increases the likelihood of mutual agreement or give and take between and among the parties to the dispute. The mediator should work diligently to

elicit all necessary information from the parties. The mediator may restate this

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