One of the best practices often neglected by new and seasoned mediators alike is the orientation session or mediator’s opening. This is an opportunity to establish and assure the participants that the critical elements of the mediation are and will be present, which include:
That you are an independent, neutral third-party
That you can’t and won’t force a settlement
That you have no say in the outcome
That the process is confidential
That you will maintain confidentiality from your caucuses
It’s also important to explain the process, how it will work, what the day will look like, and any logistics. It’s a time to reiterate the importance of patience and persistence, compromise and collaboration, and interests and intentions, all leading to a win-win for both parties.
Standard 3(a) of the Alabama Code of Ethics for Mediators provides:
(a) Orientation Session. In order for parties to exercise self-determination they must understand the mediation process. At the beginning of the mediation session, the mediator should explain the mediation process.
This explanation should include:
(1) The role of the mediator as a neutral party who will facilitate the discussion between the disputing parties but who will not decide the outcome of the dispute;
(2) The procedures that will be followed during the mediation session or sessions;
(3) The pledge of confidentiality that applies to the mediation process;
(4) The fact that the mediator does not represent either party and will not
give professional advice in the absence of a party’s attorney and that, if expert advice is needed, the parties will be expected to consult with experts other than the mediator; and
(5) The fact that the mediation can be terminated at any time by the mediator or by any of the parties.
Further, in the event a party is not represented by an attorney, the mediator should explain:
(1) That the parties are free to consult legal counsel at any time and are encouraged to have any settlement agreement resulting from the mediation process reviewed by counsel before they sign it; and
(2) That a mediated agreement, once signed, is binding and can have a significant effect upon the rights of the parties and upon the status of the case.
This session can be done with the parties jointly (ideal, if possible) or in the initial individual caucuses.
Remember, there will likely be at least one participant who has never been to mediation and probably more than that who have never done a mediation with you. And, you cannot be sure that whoever conducted the mediation with them before did an orientation session or conducted the mediation like you do (or even that they did it appropriately). Asking someone if they’ve been to mediation before and receiving an affirmative response does not count as doing an orientation session.
It helps to make some notes about what you want to cover in the orientation session.
They should include those things listed above, at a minimum. It is also a great time to get clarification of your understanding of the facts and issues to be addressed. It’s also helpful to get a commitment to the process and the goal(s) for the mediation.
Don’t start the mediation session as a potted plant. Don’t create an unnecessary hurdle to the mediation’s success. Do an orientation session. Every time.
If you have questions or just need a pep talk, don’t hesitate to reach out to us. Also, remember the great resources available at the Alabama Center for Dispute Resolution.