1...Pre-mediation discussions with parties and counsel

Eliminate stress and lack of understanding
Explain rules of confidentiality
Give parties Agreement to Mediate
Make sure decision maker will be present at negotiations with authority to settle
Discuss documents and need to visit locations
Discuss role of counsel

2...Agreement to Mediate

Parties will sign contract agreeing to mediation
Agreement sets out requirement of disclosure, confidentiality rules, fact that mediator does not give legal advice
Encourage parties to retain counsel
Discuss termination of process
Determine fee

3...Procedure

3.1...Beginning the Session

Set positive tone
Help develop procedure for venting emotions
Help develop structure for educating parties about issues they want to discuss
Help provide means for accurate communication

3.2...Mediator’s Monologue

Introduce yourself and process
Explain your role, role of caucus and joint sessions
Define confidentiality, impartiality and neutrality
Answer questions

3.3...Caucus

Private meeting between one party and mediator
Allow parties to vent emotions, discuss confidential information
Identify issues, positions of parties
Generate options
Evaluate settlement proposals

3.4...Negotiations

Opening statements of parties

Help parties communicate about substantive issues

Active Listening
Summarisation
Expansion
Ordering
Separation or Fractionating
Probing or Clarifying Question

3.5...Set the Agenda

Establish a Positive Emotional Climate
Prevent verbal attacks
Encourage focusing on problem, not people

3.6...Locate Common Interests

Brainstorm
Prioritise issues
Explore overlapping issues
Explore perceptions of other party’s interests

3.7...Generate Options

Discuss numerous options
Do not evaluate options as you raise them
Focus on the issue or problem, not the other party
Consider a single-text negotiating document

3.8...Problem Solving

Building Block Approach to settlement
Divide problem into issues and sub-issues
Prioritise issues and resolve individually
Build on each resolution to reach final integrated resolution

3.9...Agreement in Principle Approach

Design set of general principles to guide discussions
Negotiate specifics
Expand the Resources
Logrolling (trade-offs)
Alternation
Seek Integrative Interest-Based Solutions

4...Closure

Determine whether the agreement should be strong or weak

If strong, be comprehensive, clear
Avoid contingencies, future or ongoing performance
Set out consequences for failure to abide by agreement

If weak resolve only necessary issues
Design mechanism for resolution of future disputes
Make agreement contingent
Leave room in less significant clauses for future
negotiation

5...The Agreement

Generate settlement options
Evaluate options
Formulate proposals
Writing the Agreement
Consider simple memorandum of understanding

Formal contract generally required
May be written by lawyer for one party
May be written by joint committee or one party

Mediator may draft agreement if it is simple
Get input from all parties
Review document with parties to make sure all interests have been covered