B. The Opening Joint Session

The first joint session is conducted by the mediator with all parties and counsel present. It is helpful if the participants reintroduce themselves and provide a little background on their participation in the process. The mediator will then make opening remarks followed by statements from each of the attorneys representing clients. Everything the mediator says and does is directed to building rapport and trust and setting the stage for calming the parties and turning what has been a negative and stressful experience into a positive one.

1. The Mediator’s Opening Remarks

The mediator should make an opening statement which will create the proper atmosphere for peaceful resolution.[65] Her tone, tenor, and manner are critical. Her remarks should focus on the need for resolution and peace and emphasize that mediation is a gentler, kinder way of voluntarily resolving differences. Unlike a trial, which is highly charged, stressful, and very unkind to all, mediation is a user-friendly process in which all end up winners. In a very real sense the parties are, for the first time, on the same side.

In these opening remarks, the mediator should speak in a way that will help calm the parties. Many come into the mediation with trepidation and some with great anger and frustration. By emphasizing the gentle and friendly nature of the process at the outset, the mediator can neutralize any unfriendly exchanges.

In addition to calming the parties, the mediator’s remarks should also begin to build rapport. This can be done by expressing her concern for the welfare of the parties and the importance of getting this difficult chapter in their lives behind them.

A way some mediators emphasize the user-friendly nature of mediation is to contrast it with a courtroom trial. A courtroom trial is quite stressful and can leave many mental scars. Rarely does someone “win” at trial, even when they receive a verdict. Cross-examination and the confrontational nature of the process are quite unkind to all who participate, even the lawyers. More importantly, the parties are putting their lives and future in the hands of jurors who are strangers, who may not fully understand the case or the far-reaching implications of what they are deciding.

In mediation, the parties are the judge and jury, and they are empowered to make the important decisions. Whereas jurors can only reach a verdict, the parties in mediation can craft a settlement which can include more than the award of money.[66]

In addition to calming the parties and building rapport and trust, the mediator needs to explain her role in the mediation. She should give a pledge of absolute neutrality—what she does for one side she will do for the other. She should further explain that she will be nonjudgmental and not try to force the parties to settle at what she personally believes the case is worth.

The mediator should also explain that the mediation is a settlement conference and therefore must be kept confidential and cannot be referred to in later proceedings. All that occurs in the private caucuses will be kept confidential even from the other parties, except for those matters a party wishes to disclose.[67]

Finally, the mediator should ask the parties to be patient, remain flexible, and be creative in fashioning a resolution that all can accept. She might point out that a good settlement is where each party gives more than intended. After this the mediator will invite opening statements from each side.

Date: 2015-01-02; view: 708