Mediation requires a modest written agreement by the parties whereby the parties appoint a mediator and the parties agree that the mediator will preside over a confidential session or sessions between clients and their counsel. At the outset of the mediation, the parties may wish to make short presentations of their positions for the mediation and the mediator may wish to ask basic questions about the dispute. Counsel may use video deposition clips or other aids to highlight important facts or emphasize witness testimony.
After initial introductions and presentations, the mediator will ordinarily meet separately with the parties and their counsel and initiate negotiations. Mediators are not recruited to express opinions about the merits of a case. Rather, they are chosen to serve as unbiased neutrals, preserving confidentiality of information and exploring common ground between or among the parties that can result in agreement.
Since mediation is conducted solely based on agreement between or among the parties, it can be ended at any time. The mediation process is confidential and cannot be the subject of evidence in an underlying lawsuit. Frequently, state and federal courts strongly encourage, or require, that parties to business litigation make a good faith effort to mediate before consuming significant resources in discovery and at trial.