Preparing for a Mediation

What is Mediation?

Mediation is a flexible dispute resolution process in which an impartial third party facilitates negotiations between parties to help them devise their own, mutually acceptable solutions. The mediator will ask questions, reframe issues, assist the parties to understand each other, and help identify solutions. Mediators do not take sides, pass down decisions, offer legal advice or reveal confidences.

There are a number of kinds of discussions that parties can have in the context of a mediation. Parties sometimes use their respective estimations of the likely outcome of litigation as a basis to trade offers, bargain and compromise. At times, parties may engage in a collaborative process in which they work together to find solutions to problems relevant to their dispute. In cases where the parties have an ongoing relationship, parties may focus on their respective values and communication styles. The mediator will work with the parties to determine what kinds of discussions appear to offer the best prospects for settlement.

Mediation typically results in settlement when the parties are able to find a resolution to the case that, all things considered, is better for everyone involved than continued litigation. Factors that favor settlement over litigation include speed, cost, certainty, control, risk reduction and flexibility. Typically, the agreement that results from mediation is not exactly what the parties expected before the mediation.

The mediation process is flexible and relatively informal. It can take various forms, depending on the nature of the dispute, the approach of the mediator, and the needs of the parties. The parties, their lawyers and the mediator can all meet together in "joint session". The mediator may meet with the two sides separately in "caucus". If everyone agrees, the parties may meet with the mediator without their lawyers or with each other without the mediator of their lawyers. Other possibilities exist.

Confidentiality Top

In order to encourage efficient and frank settlement discussions, the Court of Appeals for the Fourth Circuit exercises great care to insure strict confidentiality in the settlement process.

Under local rule 33, adopted by this Court:
"Statements and comments made during all mediation conferences, and papers or electronic information generated during the process, are not included in court files except to the extent disclosed by orders entered under this local rule. Information disclosed in the mediation process shall be kept confidential and shall not be disclosed to the judges deciding the appeal or to any other person outside the mediation program participants. Confidentiality is required of all participants in the mediation proceedings. All statements, documents and discussions in such proceedings shall be kept confidential. The mediator, attorneys, and other participants in the mediation shall not disclose such statements, documents, or discussions without prior approval of the Standing Panel on Attorney Discipline".

Before a conference convenes where clients are participating, counsel may also want to review In re Anonymous, 283 F.3d 627 (4th Cir. 2002), which addresses this local rule. Anyone having specific concerns about confidentiality may also raise them with the mediator and/or with counsel during a mediation. Before the in-person conference convenes, counsel may also want to review In re Anonymous, 283 F.3d 627 (4th Cir. 2002), which addresses this local rule. Anyone having specific concerns about confidentiality may also raise them with the mediator and/or with counsel during the in-person mediation.

Preparation for Mediation Top

In preparation for the mediation, all participants should give careful consideration to what is important to them in the dispute and how the issues in dispute relate to broader issues of relevance to them (e.g., their values or broader commercial interests). An important goal in preparation should be to enter the mediation process confident enough in one's own understanding of the situation to be open to other participants' points of view and to options that may arise in the course of the mediation process.

Parties should also give consideration to what will happen if the case does not settle. What is the risk that the litigation will be unsuccessful and what would the consequences be? Parties need to consider the time, cost and disruption of further litigation and whether success in the litigation will end the dispute. Might the case be remanded? Might there be another lawsuit? Might another party file bankruptcy? Might the dispute be fought out in some other fashion?

Prior to the mediation, participants should gather any information that they foresee being relevant to possible resolutions of the dispute. On the other hand, people are encouraged not to come to the mediation with predetermined "bottom lines". While it is understood that there will be factors that will limit all participants' flexibility, identifying absolute boundaries in advance may limit one's ability to profit from the mediation.

Maximizing the Opportunity for a Successful Mediation Top

In order to maximize the benefits of mediation, participants should keep the following principles in mind as they enter and participate in mediation:

  1. Appropriate decision-makers must be present at the mediation.
  2. Everyone should participate honestly and courteously.
  3. Each person should be willing to understand, but not necessarily agree with, the others' concerns.
  4. Participants should remain open to new ideas for resolution.
  5. Parties should assess litigation costs and prospects realistically.

Cases are resolved in mediation only if the parties can agree to an outcome. Since all parties come to a mediation with an effective veto over its outcome, each party can participate in the process without fear. But each party also has a powerful incentive to find a solution that meets the needs of the other parties to the dispute. The mediation process doesn't work for anybody unless it works for everybody. This is the challenge of mediation.

Some Mediation Preparation Questions Top

The purpose of these questions is to help you prepare for the upcoming mediation by getting you to think broadly about the dispute in which you are involved. Please give them serious, private consideration. Although you will not be required to answer these specific questions at the mediation, some of the same issues may be discussed. Certainly, you are free to bring them up at the mediation.

  1. As you think back on the dispute, what is the heart of the matter for you?
  2. How do you think the events that gave rise to the dispute looked to the other people involved? What would you have done in their shoes? What would help you understand their perspectives better?
  3. What factors beyond the control of the parties to the case contributed to the dispute?
  4. What might you have done differently if you had the opportunity to go back and relive the relevant events.
  5. Assuming anything is possible, what would you like to talk about at the mediation? What do you think the other participants would want to discuss?
  6. What are the practical concerns that inform your perspective on settlement?
  7. What other concerns are relevant to your thinking about settlement?
  8. What would it feel like to have the dispute over? What would a fair resolution of the dispute look like to you?
  9. What would it feel like to have the case proceed? And end favorably to you? Unfavorably?

We in the Circuit Mediation Office look forward to helping you find a way to settle your dispute.