To familiarize the mediator with the case, the parties are asked to submit a Position Paper prior to the mediation session.  This document should include any information that might enhance the mediator’s understanding of the dispute: an explanation of the rationale for parties’ rationale for their positions on the disputed issues; a description of the important interests that lie beneath those issues; and a summary of the perceived barriers to settlement. The position paper will typically include a statement of the case, facts and background information, theories of recovery or defense and a breakdown on the issue of damages. This document is submitted in confidence and is not disclosed to the other side, unless the submitting party agrees that it would be beneficial.  Special rules regarding Position Papers can be developed for particular cases.

The mediator typically does not need complete depositions or detailed supporting documents.  However, if a party intends to rely heavily on particular depositions, reports, contract provisions, or correspondence, then critical excerpts of such material should be appended to the Position Paper.  The complete documents should be available at the mediation for ready reference.

The mediator contacts each side prior to the mediation to clarify any issues and review the process.  In complex or multi-party cases, the preparation process may be somewhat more involved. Often in such cases the mediator will spend some time with the parties prior to the mediation, in person or by phone, deciding on a process design that will maximize the efficiency of the mediation session. The process may also be customized in cases where the needs or limitations of the parties would benefit from a different format.

Who Should Attend the Mediation?

The parties to the dispute, their counsel and in certain cases, consulting experts, should attend the mediation session. It is very important that participants in the mediation have authority to enter into a settlement or immediate access to someone who does. In AMERICORD’s experience, the single greatest cause of non-agreement at a mediation session is the absence persons with adequate negotiating authority.

Those in attendance are expected to personally participate in the discussions by engaging in informal dialogue and information exchange.  Much of the party/expert participation will be in caucus with the mediator and counsel may request that certain areas of discussion be reserved for these private sessions.

The Mediation Session

While each case may differ somewhat depending on the circumstances, the mediator will typically begin the session by describing the nature and format of the process.  The parties will then review and sign an Agreement to Mediate. To provide structure for the mediation process, establish expectations and prevent surprises, the mediator will then lead a discussion on such matters as a schedule for the day; “ground rules” for participation so that the mediation process runs smoothly; the scope and nature of the authority of the parties to negotiate a settlement; and any constraints participants may have that might affect the way the process is managed.  The mediator will reaffirm the parties’ understanding that their goal in mediating is to reach agreement and commit the participants to use their best good faith efforts to settle the dispute in mediation if they can reach an agreement that serves their interests. 

Whether in joint session or in caucus, mediator will ask each party to provide a summary of their case. This presentation will generally include background information, key facts, disputed issues, and any previous settlement discussions.

Confidential Caucusing

After the joint session the mediator then begins a series of private meetings, or “caucuses”, with each side, usually beginning with the plaintiff. The mediator may not disclose anything a party has identified in caucus as “confidential” to other parties.  The objectives of caucusing are many, but three are most significant: 

·          to give the mediator an opportunity to ask each side probing questions about its case, which parties might be uncomfortable answering in the presence of an opponent.

·          to give the mediator an opportunity to explore the conditions under which a party may exercise flexibility or modify its position.

·          to provide a confidential forum where the mediator can play the role of “devil’s advocate” regarding the parties’ positions, explore any business or personal interests which underlie those positions, and generate creative options for settlement. 

“Shuttle Diplomacy”

The caucusing process continues with the mediator going back and forth between the parties, caucusing with each in an effort to narrow or eliminate issues, overcome barriers to momentum in the negotiation, exchange proposals, counter-proposals, narrow the gap that separates the parties, and perhaps even to help develop creative options for settlement.  In multi-party cases, the mediator will sometimes caucus with fewer than all the plaintiffs or defendants or third party plaintiff/defendants.

RECONVENED Joint Session

On occasion, the mediator may suggest that reconvening of a joint session could be productive

Reaching Agreement

The mediation process will continue until the parties agree to a resolution, agree to continue negotiations at a later date, or the mediator concludes or agrees that further mediation efforts will not be productive.

Although results in a given case depend upon its specifics, the vast majority of cases mediated by AMERICORD result in a settlement.  Sometimes an additional session may be necessary or the mediator may be able to facilitate a final resolution by follow-up telephone discussions.  In other cases, the parties may simply need time to re-evaluate their cases in view of the perspective gained in the mediation and will arrive at a settlement on their own shortly after the session. 

FORM OF SETTLEMENT

The Minnesota Civil Mediation Act, (Minn. Stat §572.33(4)) provides that a “Mediated Settlement Agreement” must be in writing, setting out the terms of the partial or complete agreement, signed by the parties and dated. It must state that the mediated settlement is binding on the parties and that the parties were advised, in writing, that (a) the mediator has no duty to protect their interests or provide them with information about their legal writes; (b) signing a mediated settlement agreement may adversely affect their legal rights; and (c) parties should consult with their attorney before signing a mediated settlement agreement if uncertain about their rights.

Accordingly, before leaving the site of the mediation, counsel for the parties (sometimes in consultation with the mediator) should draft for the signature of all parties at least a memorandum containing the essential terms of the agreement to ensure its enforceability. 

Mediator Fees and Expenses