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Understanding the Process of Mediation

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by Brian R. Haskell

Before we begin the process of resolving your dispute, you and the other parties involved in the dispute will receive an Agreement to Mediate.

This Agreement memorializes our respective obligations, establishes ground rules, confirms confidentiality, and formalizes our fee agreement. You must sign this at the first session.

One week before our first session, we ask that all parties provide the documentation necessary to resolve the dispute. 

This documentation will vary depending on the nature of the dispute. We will provide you with a document checklist when we deliver the Agreement to Mediate. Each party will also be invited, though not required, to provide us with a written statement regarding the nature of the dispute, the relevant facts, and any other information the party would like the mediator to know.

These statements will not be shared with the other party or parties.

Your First Mediation Session

Our first mediation session will start fairly formally. I will formally introduce myself, take a few moments to discuss my background, and establish the basic ground rules for the session.

You will also be presented with a copy of the Agreement to Mediate for your signature. You will also be provided an Issues Identification Form that we will use to focus and narrow the scope of the mediation.

Finally, we will remind everyone of the voluntary nature of mediation and the strict confidentiality of the proceedings.

Once the opening formalities have been completed, we will turn the process over to you. You will determine what we talk about, the nature and tenor of the negotiations, and ultimately, the results.

As a facilitator, the mediator’s role is to guide the discussion, ensure that we stay focused on the issues at hand, ensure that we understand one another, promote harmony and reasonableness in our discussions, offer new and creative ways around seemingly intractable problems, and document the agreements reached.

While we will do our utmost to get to resolution as quickly as possible, we urge patience. Remember that your issues did not develop in a day. It took months, maybe years. Patience with the mediator, patience with the process, and most importantly, patience with each other is imperative.

Additional Sessions

At each additional session, we will continue to discuss and narrow the scope of the discussion until you have reached agreement on every point or reached an impasse. We will generally follow the process established in the initial session.

When little or no progress is made, we will discuss whether continued mediation is advisable, or whether a different mediator might be more effective. We will decide together whether to continue the mediation or conclude the sessions.

Documentation Stage

The mediator will transform the session notes into a written Memorandum of Understanding. This document will be delivered to each of the parties for review and comment.

All parties will be afforded the opportunity to provide comments, request clarifications, and ask questions. Based on these communications, we will revise the Memorandum of Understanding. 

Once all parties agree on terms within Memorandum, a final version will be circulated for signature.

It’s important to understand that the Memorandum is usually non-binding and does not become a legal obligation until the parties have had their attorneys review the document and draft a binding contract based on it. In some circumstances, with a little modification, the Memorandum of Understanding can be made into an enforceable document.

If mediation is your next step to resolve a current dispute, Next Chapter Mediators is here to help. We are nationally certified to provide mediation services to anyone in the United States. Contact us for your free consultation.

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