An Overview of the Mediation Process

Posted On May 5th, 2016 by Michael Dunham

[Ed: Originally published on Facebook.]

The mediation process might vary a little bit based on your jurisdiction, but usually the process is more-or-less the same.

Often a mediation will start with a so-called “joint session”, which will involve all the parties around the same table. The mediator runs this part of the mediation, and usually takes some time to explain some ground rules. Often there is a document everyone will sign by which they agree the rules of mediation have been explained to them and that they will attempt to mediate in good faith, even though they are not bound to settle their case. The joint session then typically continues with opening statements by both sides, usually starting with the plaintiff (whether that’s the husband or the wife).

After the joint session, the parties are typically split into separate rooms for “caucus” with the mediator. The key thing to keep in mind is that, with a few limited exceptions (to report something like child abuse or a threat to cause harm), everything said in caucus is confidential, and the mediator will not reveal what is said to the other side unless given express permission to do so. This is important because it allows the parties to be more open with the mediator, sharing weaknesses they perceive in their cases without worrying that the mediator will run and tell the other side. That way, the mediator can more effectively “reality test” with both parties, to try and get them to move closer to a settlement.

Often the mediator will skip the joint session entirely. This is typical where there are allegations of spousal abuse, or where there have been attempts to negotiate before mediation (and thus the mediator is not starting from scratch). Don’t be too troubled by which party the mediator starts with or why, or how much time the mediator is spending with one party versus the other.