The Mediation Process at BDRS
Before the mediation, the parties may submit written
pre-mediation statements to the mediator. Such statements
might contain, for example, a summary of a party’s claim or
defense, what a party hopes to accomplish at mediation, or
particular concerns or perceived impediments to resolution.
Preparing such statements may be a useful tool for parties and
their counsel in thinking through the issues and preparing for a
The purpose of such pre-mediation statements is not to
persuade the mediator, but to familiarize the mediator
with the dispute.
While BDRS encourages the parties to exchange information, it
is up to the parties to decide whether to submit their respective
statements just to the mediator, or also to exchange
statements among themselves. In order to avoid confusion,
however, the mediator will assume that anything in the
statements may be shared with the other parties at the
mediation, unless specific portions of a statement are
expressly marked as being as confidential.
The mediator’s role is to guide the process in a productive and
efficient manner, and to facilitate communication among the
parties. The mediator is not sitting as a judge or arbitrator.
The parties themselves control whether and how
the dispute is resolved. When the parties reach a resolution,
the mediator will assist the parties in memorializing
Each mediation is tailored to the needs of the parties and the
nature of the dispute. Typically, however, there will be a series
of joint or private sessions—or caucuses. The goal of these
sessions is to enable the parties to explore and understand
their interests--financial or otherwise--develop options that
will satisfy their interests, and determine whether
all parties can reach agreement.
The mediator first meets with all parties in a joint session for
an introduction and review of the process, after which each
party has an opportunity to present its side of the dispute.
After that initial joint session, the mediator usually meets
privately with each party, or with groups of parties, followed by
subsequent joint or private caucuses, as warranted. There are
no arbitrary sequences or time limits.
Joint sessions can be a critical aspect of the mediation,
particularly in instances where the parties have never met, or
have not met since the time of the events giving rise to the
dispute. The importance of giving parties an opportunity to
have their say in front of their adversaries, and to hear directly
any response the other parties might wish to make—all
protected by the confidentiality of the mediation—should not be
undervalued, even in cases where the dispute seems to be
“just” about money.
Private sessions give the parties an opportunity frankly to
assess the strengths and weaknesses of their case, discuss
confidential information, to vent positions or emotions they do
not wish to share with the other parties, and to consider the
consequences and alternatives to a mediated settlement.
Simply put, what happens in mediation stays in mediation.
In addition to the overall confidentiality of the mediation—where
the parties have agreed to keep confidential what is discussed
among them—parties may instruct the mediator not to share
certain information communicated to the mediator in a private
session. Please see the discussion of Confidentiality in the
Principles of Mediation for additional information on this critical
aspect of the process.