The mediator should begin the mediation session with laying a few ground rules. Here are some examples:
1. Explaining his/her role in the process
2. Reminding everyone about confidentiality and how the information used in the mediation is for “settlement purposes” and cannot be used in court
3. Depending on preference, asking the parties to put cellphones on silent or not to speak over one another (e.g., one person speak at a time)
4. Noting that either party may speak to the mediator privately (i.e., a Caucus). In this case, the information learned by one party will only be disclosed to the other party with express permission. Thus, in a sense, a caucus is an opportunity for one party to speak privately on issues with the mediator. However, if one party requests a caucus then a similar opportunity must be offered to the other party.
Typically, mediation sessions last for approximately 1.5 to 2.0 hours, although some mediation sessions can be as long as 3 hours or more. The mediator should gauge his/her attention span as well as the attention span of the participants. If one party is tired, then mediation should come to a close as the productivity lowers at that point.
Parties are welcome to have their own attorney participate in mediation; however, it is uncommon in the family law context. It is more common for people to have their own attorney present for commercial mediation.
Mediation sessions can be schedule as close together or as far apart as the parties wish. This is one big advantage to mediation – the parties are in charge of the pace instead of the court system or arbitration body. For example, in some situations it might be appropriate to schedule the next mediation session in a day or two while in other situations, the parties would prefer a few months between sessions.
The parties may come up with a temporary agreement at the end of a mediation session which may or may not be signed by the parties. If there is an agreement on an issue, the mediator should make sure that there is minimally an oral confirmation of the understanding of the issue.