Although it has not been common in commercial mediation, other forms of mediation (e.g., family law, community, public policy and victim-offender) regularly occur among only the parties and the mediator. In such cases, legal counsel are called upon only after the completion of the mediation session to review any preliminary agreements reached in the mediation. This format can also be useful in commercial, employment and other mediation.  

 

The rational for “party only” mediation. The goals of a “parties only” mediation are to:

•     Make mediation more accessible,

•     Have the proceedings be more centered on the parties, and

•     Reduce costs by avoiding the expense of having legal counsel present during the mediation.

 

Protection of rights. To protect the parties’ legal rights and interests, the mediation should be based on the following:

•    The mediation is fully confidential,

•    Agreements of any kind reached in the mediation session are considered preliminary until reviewed by counsel and incorporated into a written settlement agreement, and

•    The mediator is not acting as legal counsel for any party, and they will seek legal advice as needed.

 

Steps in the process. Although the process is flexible, a “parties only” mediation can be structured as follows:

 

1)         Before the mediation session and if desired, the parties’ legal counsel interview the mediator by phone to be sure that they were comfortable with the process. If appropriate, key legal issues could be discussed and, if they chose, legal counsel could submit non-confidential pre-mediation memoranda to the mediator. 

 

2)         Thereafter, the parties meet with the mediator and without legal counsel. The mediation session could refer to legal issues but it would more directly focus on the parties’ issues and assessments of settlement.

 

3)         Any agreement reached in the mediation could be summarized in a written memorandum by the mediator. Such agreement would be exploratory only, and subject to review and revision.

 

4)         Thereafter, the parties could review such a memorandum with their counsel to determine whether the terms of the proposed agreement adequately protect the parties’ legal rights.

 

5)         If necessary, the parties could reconvene (in person or by phone) to discuss whether they should  modify the proposed agreement to respond to the bona fide concerns of the parties’ and legal counsel.

 

Contra-indicated cases. Of course, a “parties only” mediation is not suitable for all mediations, such as cases where:

•     The conflict is (actually not theoretically) heavily based in law and counsel should be present for a full understanding. 

•     It is important for the party representatives to hear the positions and arguments of both their counsel and opposing counsel.

•     Parties or party representatives are not capable of participating on their own, even with full preparation with their counsel.

 

In such cases, my preference would be to conduct the mediation in the more typical format. However, the alternative format which I propose above can be often effective and cost effective.