| Introduction | p. 17 |
| One Hundred Questions and Answers | p. 19 |
| The Mediation Process | p. 22 |
| What is Mediation? | p. 22 |
| What is the Goal of Mediation? | p. 22 |
| Why Does Mediation Work? | p. 22 |
| How Does Mediation Work? | p. 23 |
| What is the Difference Between Mediation and Arbitration? | p. 23 |
| Is Mediation the Same as Non-Binding Arbitration? | p. 24 |
| What if Both Parties Have Claims Against Each Other? | p. 25 |
| When do Parties Agree to Resolve A Dispute by Mediation? | p. 25 |
| Are All Disputes Susceptible to Mediation? | p. 26 |
| Should I Suggest Mediation to Parties Who Have Already Decided on Arbitration? | p. 27 |
| The Role of The Mediator | p. 30 |
| How do Parties Pick a Mediator? | p. 30 |
| Do Some Cases Need More Than One Mediator? | p. 30 |
| Do I Have to be an Attorney in Order to be a Mediator? | p. 30 |
| How can I Understand the Legal Issues if I am Not an Attorney? | p. 31 |
| Should I Have the Parties Sign a Written Agreement? | p. 31 |
| How Do I Protect Myself from Liability? | p. 32 |
| If I am a Good Arbitrator, does This Mean I Will be a Good Mediator? | p. 32 |
| What do You Mean the Mediator's Authority Must be Earned? | p. 33 |
| What Questions do I Ask About the Case When I am Appointed as the Mediator? | p. 33 |
| What Information do I Disclose? | p. 34 |
| Preliminary Procedures | p. 36 |
| How Do I Communicate with the Parties after I am Appointed as the Mediator? | p. 36 |
| I've been Appointed and I've Made the Necessary Disclosures - Now What do I do? | p. 36 |
| What do I Discuss in the Preliminary Conference Call? | p. 37 |
| What Should the Parties Include in the Premediation Memorandum? | p. 37 |
| Should I Limit the Length of the Parties' Premediation Memorandum? | p. 38 |
| What Documents do I Need to Review After I am Appointed as the Mediator? | p. 38 |
| Basic Skills for the New Mediator | |
| What Schedule Should I Propose for the Mediation? | p. 39 |
| Should the Parties Bring Their Attorneys to the Mediation? | p. 39 |
| Why are Attorneys Sometimes an impediment to Mediation? | p. 40 |
| What Can I Tell Attorneys to Educate Them as to Mediation? | p. 40 |
| Is There any Advice I can Give to Attorneys Who are not Familiar with Mediation? | p. 41 |
| What do the Parties Need to do to Prepare for Mediation? | p. 41 |
| What if the Parties Ask Me to Arbitrate the Dispute if the Mediation Does Not Result in a Settlement? | p. 42 |
| Conducting the Mediation- Physical Setting and General Procedure | p. 44 |
| Where Should the Mediation be Conducted? | p. 44 |
| What Facilities do I Need to Conduct a Mediation? | p. 44 |
| What Seating Arrangement is Used for the Mediation? | p. 44 |
| Do I Always Need a Conference Table? | p. 45 |
| What Should be the Mediator's Demeanor? | p. 45 |
| What is the General Procedure Used at a Mediation? | p. 46 |
| Who is Allowed in the Mediation Session? | p. 48 |
| May I Exclude Parties From the Room? | p. 48 |
| What Should I do if for the First Time at the Mediation I Recognize a Participant as Someone That I Know? | p. 49 |
| How Do I Avoid Improper Contact With the Parties During the Mediation? | p. 50 |
| What if One Party is Represented by Counsel and the Other is Not? | p. 51 |
| Does Mediation Require a Court Reporter and a Transcript of the Proceedings? | p. 51 |
| Should I Take Notes During the Mediation? | p. 51 |
| Should I Ask Permission to Take Notes? | p. 52 |
| Should I Inform the Parties That I Will Destroy My Notes? | p. 52 |
| Is There Anything I Should Not Do During a Mediation? | p. 53 |
| What is Co-Mediation? | p. 53 |
| The Joint Session - The Mediator's Opening Statement | p. 56 |
| What is the Purpose of the Mediator's Opening Statement? | p. 56 |
| How Do I Explain the Mediator's Role and the Mediation Process in My Opening Statement? | p. 56 |
| What Authority do I Have in the Mediation Process? | p. 58 |
| How Do I Begin to Establish Authority? | p. 58 |
| Should I Describe My Background in Detail? | p. 59 |
| The Joint Session - the Parties' Opening Statements | p. 62 |
| How Do the Parties Present Their opening Statements? | p. 62 |
| Why Do Some Mediators Consider the Parties' Opening Statements the Most Important Part of the Mediation Process? | p. 62 |
| What Can I Learn from the Demeanor of the Parties in the Joint Session? | p. 63 |
| Is There Another Way to Begin the Mediation Instead of Allowing the Parties to Make Opening Statements? | p. 63 |
| What are the Advantages and Disadvantages of Allowing the Parties to Make Opening Statements? | p. 64 |
| How do I Distinguish Between Argument and Fact? | p. 64 |
| How do I React to the Parties' Opening Statements? | p. 65 |
| What Can I Do if I Believe an Opening Statement is Too Long or Too Detailed? | p. 65 |
| What Comments do I Make at the Close of the Parties' Opening Statements? | p. 66 |
| What if a Party Brings Voluminous Documentation to the Mediation? | p. 66 |
| What Do I Need to Accomplish in the Joint Session? | p. 67 |
| How do I Assure That I Have Understood What the Parties Have said in Their Opening Statement? | p. 68 |
| Should I Rank Issues in Order of Priority? | p. 68 |
| The First Priv Ate Caucus | p. 72 |
| What Happens in the First Private Caucus? | p. 72 |
| Should I Have the Parties Rank the Issues in Order of Importance? | p. 72 |
| What Effect Does Divulging Confidential Information Have on the Parties? | p. 73 |
| What Questions Should I ask in the First Private Caucus? | p. 73 |
| How Do I Inform a Party of a Weakness in Its Case? | p. 75 |
| If it Appears That There is an Important Question or an Issue That Both Parties are Intentionally Avoiding, Should I ask the Question or Raise the Issue? | p. 76 |
| What if a Party Fails to Answer My Question in the Private Caucus? | p. 76 |
| How do I Get Past A Party's Certainty? | p. 76 |
| What are Hidden Agenda Items and Why are They Important? | p. 77 |
| What are "Throw-Away" Issues and Why are They Important? | p. 78 |
| What if A Party Seeks Legal Advice From Me During the Caucus? | p. 79 |
| Dealing with Attorneys and Evidentiary Concepts | p. 80 |
| How Do I Deal With Hostile Attorneys? | p. 80 |
| Will Attorneys Make Objections During the Mediation? | p. 81 |
| Does the Person Who Wrote A Document Have to Be Present at the Mediation? | p. 83 |
| Are Summaries of Documents Properly Submitted in Mediation? | p. 83 |
| The Second Private Caucus and Beyond - Achieving Settlement | p. 86 |
| How Do the Parties Move Towards Settlement? | p. 86 |
| How Are Settlement Offers Transmitted? | p. 87 |
| How Do the Parties Finally Reach Agreement? | p. 88 |
| How Do I Deal With a Party Who Lacks Settlement Authority? | p. 88 |
| What Can I do if the Mediation Reaches an Impasse? | p. 89 |
| Should the Parties Put Anything in Writing at the End of the Mediation if They Reach Agreement? | p. 90 |
| Who Drafts the Settlement Agreement? | p. 91 |
| What if I Believe the Settlement is Not Fair? | p. 91 |
| After the Mediation | p. 94 |
| Who May Decide to End the Mediation? | p. 94 |
| When are My Duties Concluded? | p. 94 |
| What Should I do With My Notes? | p. 94 |
| What Should I do With Documents the Parties Have Submitted to Me During the Mediation? | p. 95 |
| May I Discuss the Outcome of the Mediation? | p. 95 |
| How is a Mediation Settlement Enforced? | p. 96 |
| What if the Parties do Not Abide by Their Settlement Agreement? | p. 96 |
| Getting Paid | p. 98 |
| How Do I Arrange Compensation for My Services? | p. 98 |
| How Do I Make Sure I am Paid? | p. 99 |
| Conclusion | p. 100 |
| This is Your Question! | p. 100 |
| Appendices | |
| Sample Agreement Between Mediator and the Parties | p. 102 |
| The Stages of Mediation | p. 105 |
| Everything You Never Wanted to Know About the Rules of Evidence | p. 108 |
| Do I Need to Know The Rules of Evidence? | p. 108 |
| What Does it Mean That Information is Irrelevant? | p. 109 |
| What is Hearsay? | p. 109 |
| What Reaction Should I have to Statements That are Irrelevant or Hearsay? | p. 111 |
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