Role of the Mediator
The mediator is an invaluable neutral resource to the participants of the mediation process and, as such, he/she has no bias for or against any of the parties or their positions. He/she is merely a skilled facilitator who assists the parties in reaching an acceptable compromise. While the mediator keeps the process focused and moving forward, he/she leaves the decision power totally and strictly with the parties; the mediator does not decide what is “fair” or “right,” and does not assess blame. Instead, a good mediator acts as a catalyst to bringing the parties together through the defining of issues, the elimination of obstacles to communication, and the avoidance of unproductive confrontation. The mediator will seek concessions from each side during the mediation process, but does not attempt to “highjack” the process by too strongly imposing his/her views on the parties.

A skilled and ethical mediator is also someone who will ensure:

• All parties understand and agree to mediation as a process, the mediator's role in that process and their relationship to the mediator;
• All parties have a clear understanding as to the level of confidentiality before the mediation begins;
• All parties understand the particular procedures the mediator intends to employ;
• All parties understand the terms of any settlement that may be acheived;
• All parties are voluntarily participating;
• Confidential information is not revealed without the permission of all parties, unless required by law;
• Determine what information would be helpful to share at or in advance of the mediation.

• Introduce the participants and the mediator, and discuss the mediation process;
• Discuss unique issues which may affect opportunities for settlement;
• All parties understand the particular procedures the mediator intends to employ;

In a joint session, the mediator will explain the mediation process and ensure that all parties understand and agree to it. The mediator will also ensure that the parties understand the mediator's role in that process, the confidentiality associated with mediation disclosures and that the parties are voluntary participants. Thereafter, the parties, generally with the assistance of their counsel, will be given the opportunity to express their view of the case to the other participants and how they would like to approach settlement. These opening statements are intended to begin and to frame the settlement process, not to be unduly adversarial or merely a restatement of their positions. This session may last anywhere from a few minutes to many hours, depending on the number of participants and the complexity of the issues. The mediator can and often does offer suggestions regarding how to prepare for this session.

Following the joint session (or following separate initial meetings with the mediator, if no joint session occurs), the parties will separately caucus with the mediator. This allows each side to explain and enlarge upon his/her position and mediation goals in confidence. It also gives the mediator an opportunity to ask questions which may well serve to create doubt in an advocate's mind about the validity of a particular position.

In these caucuses, the mediator will help the parties reach a resolution by facilitating communication, promoting understanding, assisting them in identifying and exploring issues, interests and possible bases for agreement, and in some matters, helping parties evaluate the likely outcome in court or arbitration if they cannot reach settlement through mediation. Since the goal of mediation is, generally, to achieve a settlement of a disputed claim, each of the parties should have someone present who can make legally-binding decisions.

While a mediator serves as a facilitator more than an evaluator, he/she will often act as devil's advocate to explore how realistic and persuasive the positions of the participants are. The mediator often assists parties to prioritize interests and options for settlement, and to assess the relative strengths and weaknesses of their positions.

Settlement Agreement
The mediator will often work with counsel to finalize a settlement agreement and determine the procedures necessary for implementation. Once settlement is achieved, the mediator will help the parties record its terms and prepare it for signature immediately, so as to prevent second thoughts from destroying an otherwise beneficial agreement. If it appears that a settlement cannot occur on the day of the mediation session, the mediator may propose settlement terms and ask the parties to consider and/or accept that proposal by a definite date thereafter. In some situations, the mediator and parties will set a further mediation session, perhaps after the parties have had an opportunity to further evaluate their positions and/or conduct more fact-finding and/or legal motion work.

Follow Up
The mediator will often work with counsel to finalize a settlement agreement and determine the procedures necessary for implementation. Once settlement is achieved, the mediator will help the parties record its terms and prepare it for signature immediately, so as to prevent second thoughts from destroying an otherwise beneficial agreement. If it appears that a settlement cannot occur on the day of the mediation session, the mediator may propose settlement terms and ask the parties to consider and/or accept that proposal by a definite date thereafter. In some situations, the mediator and parties will set a further mediation session, perhaps after the parties have had an opportunity to further evaluate their positions and/or conduct more fact-finding and/or legal motion work.