Much of the Opening Statement by the Mediator is often accomplished prior to the mediation in litigated matters. In community mediation (non-litigation), the participants may not be aware of how this thing called mediation works. Whether you are mediating a litigated or non-litigated matter, it is essential that all of the participants understand the concepts in the Mediator's Opening Statement, since it identifies the participants and explains the process.
Know your mediator. The mediator introduces him or herself, explains his or her role as a neutral, and discloses any prior dealings or relationships of any type with the parties or their attorneys.
Know the Participants. The mediator should ask everyone present to identify him or herself and explain why they are there. This may include principals, attorneys, witnesses, insurance adjustors, those providing moral or other support. Anyone other than the disputants and their attorneys will be excused, with witnesses subject to recall if needed.
The name, address, and contact information for each person should be obtained.
Understanding the mediation process.
The mediator may explain that mediation is an informal process, not a court hearing. The contents of case files, mediators notes, statements made during the mediation, and all documents and communications relating to the mediation shall be confidential, pursuant to sections 1115 - 1128 of the California Evidence Code.
The role of the mediator is to set the tone, facilitate direct communication, help define the issues, clarify expectations, explore feelings and help the parties to define their needs and develop alternatives for resolution of the dispute. The mediator does not decide the outcome, place blame, or determine liability.
Witnesses and other professionals will be excused after the opening statement and shall participate only as agreed by the parties.
Caucus. The mediator may determine that a separate interview or caucus is necessary or helpful - that is, the one party and his or her attorney meet separately with the mediator, outside the hearing of the other party and attorney(s). Matters discussed in caucus may be held confidentially, or shared, depending on the desires of the party.
Attorneys. Although parties may have an attorney, they are not required to do so. Attorneys are present to advise their clients, not to conduct discovery. A party may ask for a recess in the mediation at any time to discuss something with their attorney. The parties may also write down an agreement and wait to execute the agreement until his or her own attorney has seen it.
Voluntary Process. The mediator should explain that mediation is a voluntary process. The mediator has no power to enforce any agreements or impose any decision upon the parties. Many consider mediation to be primarily a good faith negotiation whereby the parties agree to disclose fully any and all facts or information pertinent to the dispute.
Agreements. A general feeling among mediators is that an agreement reached at mediation is binding if both parties are of legal age, they understand what they have agreed to, and neither party was forced to agree. The language in the mediation agreement should specify that the mediation is enforceable.
Initial Statements. Where appropriate, the mediator will advise each participant that they may make an opening statement. Neither party shall interrupt the other's opening statement.
Other Ground Rules. The mediator should make known at the outset any and all ground rules for the mediation.
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