Convening the Mediation

Even before the opening statement, the mediator must convene the mediation.

One of the first things the mediator does after being contacted by a party or attorney is to determine whether all of the other "necessary parties" are willing to try to resolve the issue(s) at a mediation. Sometimes, the mediator will call the other party(ies) or attorney(s) to explain a little about mediation and to find out whether everyone wants to mediate. Other times, the attorneys will have already agreed to mediation, and just want to get the matter settled as quickly and fairly as possible.

Before one can know whether the "necessary parties" are going to participate, one must learn who those parties are. Who has the authority to sign the settlement agreement? Once their identity is known, the mediator can determine whether the mediator has any conflict of interest.

Any actual or even potential conflict of interest must be disclosed by the mediator, as well as all prior contacts with the parties and their attorneys. Perhaps the mediator has mediated several cases with one of the attorneys involved in this mediation - the other party and attorney need to know this.

If anything about the issues or the parties push the mediator's buttons, preventing the mediator from being neutral and impartial, this is the time to bring that up and bow out of the mediation.

All parties must understand that an essential element of mediation is self-determination - the parties create and own their solution, not the mediator, not the courts. The parties must understand that participation and reaching an agreement are voluntary - it is not necessary to reach an agreement or to participate in mediation.

All parties must understand that the mediation process and all communications related to the mediation are confidential and not admissible in a civil court (though they may be admissible in a criminal court - e.g., one party states at mediation, "I'm going to kill all of the mosquitoes in your backyard if you don't settle on my terms." This would be admissible in a criminal trial for, say, blackmail.

The parties and mediator decide whether or not legal briefs or other written information is going to be provided to the mediator prior to the mediation.

The parties and the mediator clear their calendars, and make a commitment to the process.

Fees are agreed upon and paid in advance. The cancellation policy is understood by all parties.

Once all the necessary parties have all the necessary information, and everyone agrees to be in one place at the same time, with sufficient time set aside to come to an agreement on the issues, fees are agreed upon and paid, and documents are exchanged and provided to the mediator, the matter is ready for mediation and may be convened.