One of the most important parts of the mediation process is the review of the Mediation Guidelines (Guidelines), also referred to as the Mediator Opening Statement. I am often surprised to hear that some mediators will waive the Guidelines. Though most attorneys have heard the “preliminaries” hundreds of times, the clients have not. Many times, clients do not have any familiarity with mediation or the process. Here are just a few reasons why this important step should not be skipped.
First, the Guidelines review is the chance for the parties to clearly understand the mediation process. A good mediator will explain each of the essential tenants of mediation: confidentiality, neutrality, and impartiality. It is essential that parties understand that the mediation is confidential and a safe place for them to express their concerns without ever having to worrying about their personal business being posted on social media. Parties should also know that any statements and documents or other materials generated in connection with the mediation are not subject to disclosure or discovery. Mediators are neutral and do not favor a side. They have no interest in the outcome of the case. A mediator is a helper and facilitator, not a dictator and instigator!
Secondly, parties should understand that the Guidelines is the opportunity to set the tone for the mediation. During the guidelines, most mediators will give clues as to what they expect from the parties during the process. For example, A mediator that emphasizes compromise, is one that will be looking for the parties to focus on moving away from their initial positions and find middle ground. A mediator that emphasizes order will probably not tolerate parties interrupting one another. These clues often tell you in advance, what style the mediator will use to facilitate the process.
Third, the Guidelines clarify the rights of the parties. Parties are not required to settle and if they do, they don’t have to settle every issue. Partial and Temporary agreements are an option. Parties should also know that if they don’t settle, their right to proceed to trial is preserved. They lose nothing by participating in mediation and it’s usually worth the effort to see if an agreement can be reached.
Maintaining the Guidelines review is essential to setting the tone for a successful mediation. A good mediator will perform these “preliminaries” in every case and not miss the chance to start the mediation on a positive and clear path.