The precise conduct of a mediation is influenced by a number of factors, including the personal style of the individual mediator, the relationships among parties and counsel, and the nature of the conflict itself. Despite the uniqueness of each case, however, typically parties to a mediation at TMG can expect the following general process:
Participants gather at the specified time, generally at our office in Brookline. Our aim is to create an atmosphere which, while professional, is hospitable and unintimidating – we understand that conflicts may be deeply personal and often stressful, and we do our best to make the mediation experience a constructive and positive one, from the initial greeting by the administrative staff, through the end of the day.
Generally, the mediation itself begins with a joint session bringing together all mediation participants. During this opening session the mediator will usually begin by making introductions and will also take some time to explain the ground rules, laying out what the parties can expect from the mediation process. Finally, the mediator often (but not always) invites counsel and/or their principals to make brief opening statements.
After the public session, the mediator typically divides the group into separate rooms, beginning a series of private caucuses. This provides parties the opportunity for candid conversations with the mediator about their interests and goals. During these discussions, the mediator may probe into sensitive areas, exploring difficult questions. This is part of the process of helping the parties on both sides move towards common ground. Generally the mediator goes back and forth between the parties, engaging in a process of shuttle diplomacy between them. Throughout the day, the mediator serves as a neutral facilitator of the negotiations between the parties, communicating each party’s proposals and counter proposals with the ultimate goal of reaching agreement by the end of the day. One thing to note is that this can be a gradual process, with incremental progress that can feel frustratingly slow, especially when the mediator is with the other side. We do our best to keep everyone comfortable – while it’s not always an easy process, it is a very effective one.
Approximately 85% of our mediations end in resolution. After the terms of the agreement have been finalized, the mediator will write up a preliminary settlement document which everyone signs. This document is binding and enforceable. In those cases which end without an agreement, there has often been sufficient progress for counsel, with or without further assistance from the mediator, to arrive at resolution after the mediation itself has ended. Whether or not there is a signed settlement agreement at the session, most mediations end with a brief, closing session in which the mediator again brings everyone together to wrap up the day’s work.