Structure
Below are some of the common structural elements seen across mediation. Some or none of these elements may appear in any given mediation, depending on mediation model, time constraints, and the preferences of the parties and mediator.
Opening Statements
Opening statements, as the name suggests, are generally given at the outset of the mediation session. If a mediator provides time for opening statements, it can give the parties the opportunity to clearly explain their side, and to set the tone for the mediation. Often, both the party and their advocate will speak during the opening statement. Learn more about this in "Role of the Attorney Advocate" and "Client Preparation."
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The mediator will also most likely give an opening statement in which they explain their policies, the process, confidentiality, and open the floor for questions.
Joint Session / Cross-Talk
Joint session, also referred to as cross-talk, is most often seen in facilitative mediation. During this portion of the mediation, both parties are at the table and involved in discussion. The mediator will often direct discussion and reframe party statements, but the majority of joint session is the parties speaking directly to each other.
Caucus
In caucus, the mediator speaks privately with one side, having the other side leave the room. Caucus may be done to check for distress, reality test, or otherwise evaluate the parties's feelings about the process and progress of the mediation. Caucus often provides an opportunity for a party to share confidential information with the mediator, or engage in critical advocate-party discussions outside of the presence of the other side.
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In some commercial meditations, the mediator will have the parties in individual rooms from the outset (or after opening statements), and the entire process will be completed through caucus. The mediator will "shuttle" back and forth between the caucus rooms to try to help the parties reach a resolution.
Agreement Drafting
If the parties reach an agreement throughout the course of mediation, the mediator will often help record this agreement in writing. Reality testing is critical during the agreement drafting stage. In most cases, a mediator will not help parties draft an agreement if it cannot survive reality testing and isn't feasible. The parties can also gain ownership over and understanding of their agreement if they are involved during the agreement drafting phase.