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How Does Mediation Work?

by Michael Tobriner

How Does Mediation Work?

Initial Meeting with Mediator

The parties hold an initial meeting with the mediator to discuss the mediation process. The parties and the mediator then sign a Mediation Agreement. Often at this meeting the mediator asks the parties to express their long-term goals, both financial and personal, for the case. The parties also identify the specific, concrete issues they will need to resolve.

Assembling Information

As the mediation continues, the parties produce the information and documents they will need to address the issues.

Brainstorming

When the information is assembled and the issues fully clarified, the mediator guides the parties through the process of developing options for resolution, often referred to as the “brainstorming” process. Brainstorming helps the parties find creative, productive solutions to the problems at hand.

Negotiating Solutions

Once a range of options is identified, the mediator assists the parties in determining which options best meet the parties’ interests and goals. The parties then reach agreement through good-faith bargaining, again with the mediator’s assistance. The mediator then prepares a written draft of the parties’ agreement.

Consulting Attorneys

Before the parties sign a written agreement, the mediator often asks parties who are mediating without counsel to consult with separate, independent attorneys, referred to as “consulting attorneys”. The role of the consulting attorney is to review the draft agreement with his or her client, to insure that the client understands the agreement and is satisfied with it, and to raise any questions that the parties and mediator may have overlooked.

Reference Forms

Agreement To Mediate

Michael Tobriner Mediation Guidelines

Mediation Outline