The initial mediation contact often comes over the phone. This is challenging in that such a one-party (ex parte) conversation is truly a caucus discussion (before the mediation participants have been informed of and agreed to rules, such as confidentiality, for caucusing). Recognizing this, it is typically best for the mediator to limit initial phone discussions with individual parties to a general description of the mediation process. Note that callers will often want to get into their issues and may well attempt, in overt and/or covert ways, to influence the mediator. It is for this reason that it is usually best to limit such one-party contacts until the parties mutually agree on rules for such discussions. The mediator is advised to share the general nature of prior contacts at the parties' first joint meeting.
Rely on descriptive materials
Having professional introductory written materials to send to both parties is one way of avoiding long initial phone discussions with individual parties. These materials may include answers to the most commonly asked questions about mediation, a sample agreement to mediate, mediation ethical standards of practice, and the like. If the non-calling party is aware that the calling party is inquiring about mediation services, it is usually fine to send written materials to that non-calling party also. If receiving information about mediation would be a surprise to the other party, then it is likely best to send two sets of materials to the calling party to allow the calling party to share the information with the non-calling party about mediation. It is advisable, in any cover letter or note, to let the non-calling party know that they are welcome to call with any questions they may have.
Have a segregated introductory meeting or phase
While mediation participants may want to immediately jump in and begin their negotiations, it is critical from an ethical perspective that the parties fully understand the nature of their contemplated mediation process before committing to participate in the process. The introductory process description phase of mediation can be a separate meeting or a segregated initial phase of a first meeting. It is critical that parties understand the voluntary nature of mediation, rules of confidentiality and that the mediator has no decision-making power. While it is not yet ethically required to have a written agreement to mediate prior to beginning actual mediation negotiations, this is certainly advisable.