Monday, May 23, 2011

Mediation - The First Session

Many people want to know what we do during the first mediation session. In that session, whether it is a family or business mediation, we usually start by reviewing and discussing what the process will be like. Sometimes people say:

“Well isn’t this just a waste of time to be going over the mediation agreement and the process. We already know what the mediator does, we know what we are supposed to do.”

But the success of the process really depends on both parties understanding it well and thinking in a way which is very different from the way they used to think or are told to think if they are involved in an adversarial process.

The mediation is designed to help them discuss issues and reach informed agreements. The focus is on their needs and on their interests not necessarily on what their rights are and/or what their entitlement is. This doesn’t mean that the result of the mediation would be very different from what would have happened in court but the process is very different and the way people communicate with each other is very different. If mediation is truly successful, the process and the mediator have helped the parties not only resolve the particular problem that they have come to solve, but have also helped them to move on with their lives and communicate/ resolve other problems going forward in a very different way than they had been doing before.

So it is extremely important to set the right tone at the beginning of mediation. What I usually do is go over the mediation process summary and agreement that the parties sign when they come in. This outlines the purpose of mediation and the role of the mediator.

It is very important for the parties to understand that the mediator does not make decisions and is not a judge. The mediator’s role is to facilitate their communication and understanding of all issues that need to be addressed. They also need to understand that they are involved in a voluntary process and in order for that process to succeed, they have to be fair to each other and willing to voluntarily exchange important information in order to make sure that each side is fully informed of all the issues that need to be addressed.

One of the most important things is communication guidelines. The most productive mediation atmosphere is created when each person shows respect for the opinions and attitudes of the other even when there is a disagreement. Difficult conversations can be improved if one speaks for him or herself and refrains from telling the other what that person needs, wants, or thinks. Sometimes, of course, especially in family cases, tensions are often high and in the beginning, people want to vent and accuse each other because there may be a lot of pain involved. When this happens, we can go back to the mediation process agreement and remind the parties:

  • Do you remember the communication guidelines that we went over?
  • Do you remember how to make this process most productive?
  • You both chose it; both wanted to do this in a different way, so let’s go back to that.
And that is another way in which going over this process summary is very important because throughout the mediation when sides veer off from the process we can then return to it and confirm that this is what we agreed on and that we should stay within that framework.

In the first session, there are other things that are important to go over, such as:
  • The level of confidentiality that is involved. What parties can or cannot expect.
  • The fees and the costs of the process and what will happen financially with the parties and their needs while the process is going on.
  • Mediation is not binding and any agreements that the parties reach in the sessions do not bind them legally to anything until they are set down in writing and signed and notarized as an agreement.
  • We are trying to provide a safe environment for them to communicate in and if it turns out that that environment does not appear to be safe for either of the parties or the mediator, you, the mediator, can terminate the sessions and say that this is not working. Mediation will only work when a safe environment is maintained.
  • Most importantly they must understand that the mediator is not there to provide them with legal advice. A mediator can give them general legal information but they are encouraged to reach out to separate council if they have specific questions about the law.

Mediation provides a safe environment and a neutral facilitator to help people resolve differences in a fair and equitable way. If you think you could benefit from a Mediation, please give us a call.


  1. Alla,
    Thank you for sharing a very useful post. It remined me how important it is to make sure my clients are aware of the difference in the process of mediation as opposed to litigation.

  2. Meditation is very helpful for both to solve issues and misunderstandings.Very nice post and thanks for posting this useful article.