The mediator is selected by the parties to act as a neutral facilitator to assist and guide them towards a case resolution. The mediator works to direct each party to focus on the critical issues of the case so they can create options for settlement. The mediator will not decide who is right or wrong in the dispute. And the mediator will not compel the parties or force them into a settlement agreement. The mediator is expected not to give advice to the parties as to what is the best choice of action in the dispute. Nor is the mediator expected to a give case evaluation. The mediator’s role is to remain objective in viewing the facts of the case and facilitate dialogue.
The mediator’s technique and approach varies on a case by case basis. Generally, the mediation will begin in a joint session with all parties present and the mediator to discuss the issues face-to-face. The mediator’s role is to help maintain the parties focus on these issues during the entire course of the proceeding. The mediator will then hold private caucus sessions with each side talking in greater detail about the respective positions of each party. The mediator is not expected to disclose information obtained in private sessions. What is shared from private sessions is dependent on the rules of confidentially that are arranged beforehand by all sides.
The mediator will use the private caucus forum to exchange messages between the parties, foster clarifications, carry questions and proposals to each side. The mediator also uses the private caucuses to facilitate negotiations by transmitting offers and counteroffers between the parties. Throughout this process, the mediator must maintain confidentiality and neutrality, stay away from giving advice, and not force parties into settlement, while facilitating communications with the parties.
Should the parties be successful in reaching an agreement, the mediator can work with the parties to draft the terms and conditions of the settlement. In some cases the mediator’s role will continue after the scheduled mediation by providing help to complete the settlement agreement. Throughout this entire process, the rules of mediation confidentiality will remain in force and effect preventing anything being prepared or said during the mediation to become admissible at any later proceeding or hearing. Also, the mediator cannot be called to testify about what was said at the time of the mediation.
Mediators do not have a stake in the outcome of the mediation. As a result, parties can be assured that when they select a mediator, impartiality will be present. Mediator selection can be accomplished by viewing public or private panels. All Superior Courts in the Tri-county area have public panels of mediators. These mediators can be hired to work pro bono or for a fee. Each panelist often has specialty areas of practice. Resumes may be requested to view a mediator’s background and specialty area along with their own fee schedule.
Mediators are required to be certified before they will be considered for placement on public or private panels. The certification process requires a specified amount of attendance at specialized training locations where methods of mediation and negotiation are presented by skilled instructors. There are no requirements for continuing education of mediators; however, many mediators often continue to refine and develop their skills by attending ongoing training sessions and seminars that are offered to help the mediator become a more accomplished practitioner. Mediators are also available for hire to instruct on their own detailed methods of mediation that can be used in the workplace.
Once a mediator is selected, a venue is determined either by the parties or the mediator may have locations to conduct the mediation. Again, neutrality is the goal, so it is in the best interests of the parties to find an impartial location to conduct the mediation. Courthouse conference rooms often can be used to assure an impartial setting. Other choices include public administration conference rooms or private facility conference rooms. The mediator may require parties to sign engagement documents to commit their participation to the mediation process.
The mediator fee is determined by the selected facilitator. If the case is assigned to mediation by the court, local court rules may determine compensation for the mediator. If the mediation is by private assignment, the parties will generally share equally in paying the mediator fee unless different arrangements are made. Mediators may require administrative fees, expenses for facilities, deposits to secure calendaring, travel expenses and may impose cancellation fees. These costs and expenses are at the discretion of each individual mediator.
More detailed rules regarding the role of the mediator and the mediation process can be obtained by viewing selected provision of the California Evidence Code, the American Arbitration Association, the American Bar Association, the Society of Professionals in Dispute Resolution and California Dispute Resolution Council.
