Mediation is a process to assist parties to reach an agreement when they are in conflict. A person who is not directly involved in the conflict called “Mediator” who is brought into a dispute and has skills in communication and negotiation as well as knowledge about conflict. Unlike a judge in court a mediator has no authority to impose any result on the parties. A mediator should be impartial and has no allegiance to any of the individuals in the dispute. In addition to being called mediator, the person who assists the parties may be referred to as an “intervener”, “neutral”, or just “third party”.
Mediation is usually a voluntary procedure, and many mediators open a conference with a statement about mediation and a review of the ground rules. The Mediator begins the process by introducing him-or herself, welcoming the parties, and highlighting key aspects of the mediation process and procedure as specified below.
The Mediator’s opening will typically:
• ensure everyone at the table is properly introduced and their capacities are known
• specify the goal of reaching a mutually satisfactory solution crafted by the parties themselves
• specify the Mediator’s neutrality and role as a settlement facilitator, not as a judge/decision maker
• inform the business executives of the need for them to actively participate
• verify the authority of each business executive to agree to settlement terms on behalf of their respective organizations without having to refer back to higher authorities
• explain the procedures to be used including a joint and private sessions
• explain the Mediator’s expectation of frank discussion by everyone
• explain the confidentiality associated with the mediation process
• ask if the participants have any questions about the process.
This simple introductory rite achieves a number of goals. In laying out these points, the Mediator:
1. Starts building a trusting relationship with each of the parties by being balanced, no positional, open, honest, competent and positive;
2. Educates by explaining mediation goals and procedures. The Mediator prepares business executives, who may be unfamiliar with the process, for what will occur in order to avoid surprises; the key point that the Mediator makes is that “I am not a judge, and I am not an arbitrator. So, actually, you are negotiating and I don’t decide anything;”
3. Demonstrates competence by showing command of the process and neutrality regarding its outcome. This helps in developing the parties ‘trust in the Mediator’s abilities.
4. Creates a positive tone by emphasizing the ultimate goal is a solution acceptable to everyone, and by repeating the importance of frankness and confidentiality.
In the opening segment, the Mediator usually reminds participants that the process will be confidential as to third parties, and furthermore that the Mediator will not disclose to a party any information that was identified by another party as confidential.
Private Sessions enable each side to meet alone with the Mediator to disclose facts, concerns, interests, limitations and offers that they would not ordinarily reveal to an opponent. Without certainty about the confidentiality of disclosures made in private sessions, parties would be reluctant to share this information, the Mediator would be denied it, and the Mediator’s task of perceiving underlying interests and shaping value-added outcomes would be made much more difficult. This trust in the Mediator and in the confidentiality of information shared with the Mediator is vital to the success of a mediation.
i. Identifying Confidential Data
Mediators should ensure that their private notes highlight confidential information so that accidental disclosure in the heat of the process is avoided. Mediators should carefully protect their private notes from view by the parties.
ii. No Written Record Reduces the Chance of Erroneous Disclosure.
In mediation, confidential information is disclosed only to the Mediator and often only verbally. The absence of a written documentation reduces the risk of human error in sharing documents that contain confidential information. Mediation affords greater protection for confidential information than a protective order or in camera record.
At the start of the first private session with each party, Mediators typically repeat the assurance that information identified as confidential will not be conveyed to the other party. At the end of each private session, the Mediator may repeat the specific confidential data that cannot be revealed or ask which specific data is not confidential which can be disclosed to the other party. This practice assures the disclosing party of the Mediator’s firm understanding and promotes that party’s trust in the Mediator but also allows for the channels of communication to be opened by recognizing that not all information is confidential.
iv. Incorporating Confidential Information without Attribution or Disclosure.
During discussions, Mediators and participants often propose possible solutions for consideration. These proposals generally aim to satisfy both sides to some degree. They are a combination of creative solutions, information and party interests. Mediators may convey proposals, whether party-generated or Mediator-generated, as hypothetical suggestions (phrased by the mediator as "What if . . .?" or "Suppose . . .?").
v. Returning Documents/Retaining No Records.
Many Mediators honor a practice of returning all documents and destroying notes at the conclusion of the mediation. The Mediator might retain a brief memo of who participated, the date, the general nature of the dispute, and whether an agreement was reached. Mediators need not retain copies of settlement agreements.
vi. Alert All Parties if Subpoenaed.
If there is an attempt to force the Mediator to give evidence in a court proceeding regarding the dispute mediated, the Mediator should alert all parties so they can protect their rights to confidentiality along with the assertion of any such rights by the Mediator.