By: Donald C. Turner
What should one expect from the mediator? To start the mediator should provide a mediation agreement that sets forth, at a minimum, the procedures for the mediation, the fees involved, and the confidential nature of the mediation. Once the mediation commences the mediator’s tasks are to (1)create a favorable condition for the mediation, (2) facilitate communication and negotiations between the parties (3) at times, provide an evaluation of each party’s position and (4) assist in the preparation of a settlement agreement.
To accomplish the first task the mediator must focus on the more mundane jobs of selecting a neutral venue, providing for seating arrangements, and employing procedures that make the parties feel comfortable so as to facilitate communications and negotiations between them.
The mediator’s training and experience are the primary bases on which the mediator will address the situation so as to facilitate communication and negotiations between the parties. Because a successful mediation inevitably requires compromise, the mediator, at times, must provide his or her analysis and evaluation of each party’s position in the interest of helping each party understand the strengths and weaknesses of each party’s position and by doing so to bring them closer together so that a final resolution becomes a viable possibility. Once resolution has been reached in principle the mediator will often assist in the preparation of a final settlement to be executed by the parties while all are still willing to settle. In effect, helping the parties to strike while the iron is still hot.