This is a brief description of how I usually work with clients. In some circumstances, other approaches, such as initially caucusing separately with each party, may be more appropriate.
One of the parties contacts me by phone or email. I talk with the party initiating contact to answer questions and provide basic information such a description of my services and fees. I follow up the initial contact by sending a more detailed description of my services along with a copy of the Agreement to Mediate for review.
When both parties indicate that they wish to proceed, I speak with each of them to review the mediation process, answer any further questions and ensure that mediation is appropriate for their particular situation. Then we schedule their first mediation session.
At the first mediation session, I describe the process of mediation and the tenets of good faith participation in mediation. I review the Agreement to Mediate and set out a few basic ground rules so that the mediation will be experienced as safe, respectful, and fair.
- Each party's perspective. Now each party has an opportunity to present, without interruption, his or her perspective of what the dispute is about and how he or she has been affected by it. While one party presents his or her perspective, the other party is asked to listen openly for opportunities where agreements might be reached.
- Identifying key issues. Following opening statements, I help the parties to identify issues and underlying needs and interests that they will address in this conflict resolution process. The parties then prioritize the issues.
Additional mediation sessions give the parties the opportunity to further their discussion of the issues and work toward a resolution.
- Generate options for resolution. In the option-generating phase, there are no "right" or "wrong" answers; we brainstorm for possible solutions together.
- Consider, evaluate, and negotiate: Information gathering, such as inventorying property, obtaining documents, or consulting with financial, legal, or other types of experts, is accomplished between mediation sessions.
- Tentative agreements: I record all agreements, but in most cases, try to steer the parties away from thinking of these as being "chiseled in stone." This flexibility can be helpful later on when the parties need to make trade-offs or tweak certain provisions to make the agreement meet their needs more fully.1
Parties usually work on "homework" assignments - jointly or independently -between one session and the next. Homework may include organizing financial documents, preparing budgets, researching community resources (e.g., childcare, care giving), and consulting with mutually selected CPAs, financial advisors, etc.
I also prepare and send to each party a summary of the session that has just concluded. The summary may include tentative or unsigned agreements, unresolved issues raised by the parties at that session, and additional matters for the parties to consider.
1 I recognize, however, that sometimes it is important for clients to reach interim agreements addressing pressing issues. These agreements are written up in a Memorandum of Understanding for the parties to bring to their respective attorneys for review before signing.
The agreement: I will draft the points of agreement into a detailed Memorandum of Understanding that I send to the parties for review. If there is significant disagreement, a follow-up mediation session is scheduled.
Attorney review: When the parties are satisfied, they are encouraged to take the Memorandum to their attorneys for review. One of the parties' attorneys will draft the order and file any necessary legal documents2.
2 This is just one possible outcome. Some parties do not need legal documents. In those instances, the Memorandum of Understanding may serve as a record of the parties' agreements to guide them. Other parties may be happy that they have reached a mutual understanding of how they will move forward and prefer to have no written agreement at all.