Who Attends the Mediation?
In the era of remote meeting sessions, the question of who is in the room during mediation is important to nail down with certainty. Obviously, it is a private meeting and children, friends, relatives and others who happen to be around are not allowed to be “in the room”. Recording mediation sessions is also not allowed unless disclosed and agreed in advance. For example, Zoom software allows recording of meetings but to do so, everyone must know and agree in advance.
Most clients attend mediation sessions on their own. They come prepared with documents and information. They are confident that they have the capacity to share information, receive information, understand it and make informed choices about how the various issues which will ultimately be addressed in their separation agreement should be resolved. They may consult with a lawyer before the mediation process begins, during the mediation process itself, between mediation sessions or only after the process ends but before signing an agreement.
If a lawyer is on the case, lawyers often attend mediation with their clients. This is common where the conflict between parties is high, the legal or factual issues are complicated, or one or both clients feel vulnerable attending on their own.
There are also situations in which new partners, family members or other support people attend the mediation with the knowledge and consent of the mediator and other party.
Arrangements are always made in advance for anyone other than the parties to attend mediation so that both parties may agree about who will be present at the mediation sessions.
Both parties need to agree about third parties being present in the office when the mediation takes place. Sometimes only one party brings a lawyer or a support person to the mediation session and the other party is comfortable attending on their own. Sometimes both parties bring lawyers or support people.
In some situations which are factually or legally complicated, I ask experts who have given reports in advance, to attend one or more mediation sessions to share information or to explain their expert reports.
Some parties attend their initial mediation session on their own and it becomes apparent that in order for them to negotiate an agreement, they require the support and assistance of their lawyers at the table. Conversely, sometimes parties need lawyers at their initial mediation session and it quickly becomes apparent that with facilitated discussions, they are perfectly capable of negotiating on their own and so they complete the mediation process without lawyers at the table.
At the beginning of each mediation session, I will decide together what issues will be addressed during the time that I have scheduled so that important issues are not left to the end of the session. Most often, there is an order in which issues should be discussed because some legal issues are naturally linked.
Mediation Rooms Set-Up
Some parties are comfortable being in the same room throughout the mediation process. Even when they disagree about how a particular issue should be resolved, they are able to have productive discussions about their differences and ultimately reach an agreement.
Some parties prefer to remain in separate rooms during their mediation sessions because they feel more emotional or vulnerable in the presence of the other party and have better concentration when the other party is not present. Mediation which takes place with parties in separate rooms is called “shuttle mediation”. It is a quite common form of mediation.
Some parties are together in the same room for most of the mediation process, however, each party may speak with me privately to discuss specific issues which may be more difficult to discuss when they are together.
These breakouts are known as “caucus” sessions. They are also quite common.
Some parties feel particularly vulnerable at the beginning of the mediation session and so they start the session in different rooms.
As the negotiation progresses, they realize that they have the ability to discuss and agree about a significant number of issues and they ultimately complete their negotiation in the same room.
The decision about whether or not you are in the same room is made on the day of the mediation session itself. It is on that day that you know what process will work best for you.
Preparing Your Agreement
Once you have agreed about how all of the issues that you need to address will be resolved, I will prepare a memorandum of agreed terms or, if asked, I will write the agreed terms into a formal separation agreement.
Independent Legal Advice
After you have had an opportunity to review your memorandum of terms or the formal draft agreement, it will be sent to your lawyers along with all of the financial and other disclosure made during the mediation process so that you may receive independent legal advice about the terms of the agreement.