When mediation is conducted, one of the first things that happens is that the parties and the mediator have an discussion about mediation in general and about the case in particular. That initial meeting is sometimes conducted with everyone in the same room together and in some cases with the parties in separate rooms. Either way, the mediator will usually explain to the parties a number of important points about mediation. Here is a sample of the types of things the mediator will point out to the parties and their attorneys:
1. The mediator is there to assist settlement discussions but is not there to decide the case.
2. Any settlement agreement will be voluntary by the parties; if there is no agreement, there is no settlement. The mediator cannot force any agreement on the parties.
3. Mediation is confidential and privileged; except for a few very limited circumstances (such as discussion of child abuse), nothing discussed in mediation can be disclosed outside of mediation nor can it be used in Court. This allows the parties to talk openly without having to worry about matters being used against them.
4. The only thing the mediator reports to the Court is that the parties either: a) settled; b) reached an impasse, i.e. did not settle; or c) continued the mediation to another day in order to allow further discussions.
5. During the mediation, the mediator may only disclose to the other side those matters which a party authorizes to be disclosed.
6. What makes mediation special is that it is perhaps the best opportunity for the parties to control the outcome rather than having the judge decide the case. If the parties reach an agreement in mediation, it will reduce the uncertainty of the judge deciding the case and it will save on both the time and expense associated with litigation.
7. If a settlement is reached, the mediator, or the attorneys, will prepare a written agreement which will be signed and presented for approval by the Court.
Since mediation is an important part of every civil lawsuit–from divorce to personal injury–understanding these points can be important to all parties.