What to Expect in Mediation

Opening statements

The mediation will open in a shared session. Each side, either directly or via counsel, will give 5 minutes of background presentation with respect to the mediation. Each side will affirm that it is prepared to settle in the event that a reasonable deal can be reached.

Caucus

The bulk of the mediation will be handled in caucus, with the mediator discussing each side’s position in independent settings.

The caucus is intended to be a place of frank and forthright discussion between each side and the neutral. Conversations taking place in caucus will not be revealed to the other party without prior consent.

At some point during the caucuses, the neutral may start to float settlement proposals. It is expected that each side will consider the proposals in good faith, and provide substantive input regarding the same.

If an agreement is reached, the neutral will call the parties back into a single session to consummate the framework for a deal.

The mediation brief

The neutral will have asked each party to submit a mediation brief, discussing the dispute and the legal positions of each side. The brief is not formally “ruled” on, but it will flag to the neutral what each side believes is important.

The neutral will have fully read the mediation brief and assessed the legal strength and weaknesses of each side’s position. The neutral will discuss such strengths and weaknesses in caucus.

Good faith and cooperation

Each party is expected to participate in good faith in the mediation process and to cooperate with the neutral in attempting to resolve the dispute.