In civil and family cases, mediators had pre-session communications both prior to and on the same day as the first session in about half of cases; only prior to the day of the first session in a little over one-third of cases; and only on the same day as the first session in relatively few cases. In few civil cases but in almost one-third of family cases, there either was no feasible opportunity to have pre-session communications or they were prohibited.
Disputants’ Participation
During communications held prior to the day of the first mediation session, one or both disputants were present, in person or by phone, in approximately one-fourth of civil cases and three-fourths of family cases. The disputants were more likely to be present during pre-session communications held on the same day as the first mediation session—in around 85 percent of both civil and family cases. During communications held at either time, the disputants who were present talked a considerable amount in around one-third of civil cases and in close to two-thirds of family cases.
What Mediators Did and Discussed
At some time during their pre-session communications, mediators engaged in the following actions in a majority of both civil and family cases: they explained the mediation process and the mediator’s role, their approach, the ground rules, and confidentiality; they discussed what information should be submitted before the first session; they assessed the parties’ and lawyers’ ability to communicate civilly; and they explored whether the parties would be okay being together in the same room. In a majority of civil cases but in half or fewer family cases, mediators explored options for how to structure the opening session and who should or should not attend the mediation. In fewer than half of civil cases but in three-fourths of family cases, mediators assessed the disputants’ capacity to mediate. In both civil and family cases, mediators explored options for structuring the rest of the mediation after the opening session in fewer than half of cases and coached the disputants and/or their lawyers on nonadversarial communications in around one-third of cases.
Regarding which substantive aspects of the dispute mediators discussed at some time during their pre-session communications, in a majority of both civil and family cases, the mediators explored which issues needed to be addressed, the disputants’ interests and their goals for the mediation, and the procedural or litigation status of the case. In a majority of civil cases but in fewer than half of family cases, mediators explored what offers had been exchanged, the obstacles to settlement, and the parties’ legal theories and surrounding facts. Mediators in both civil and family cases explored new settlement proposals and the costs and risks of litigation in half or fewer cases.
The Initial Mediation Session
The initial mediation session began with both parties together in a majority of both civil and family cases (71 percent and 64 percent, respectively). In most of the remaining cases, the first mediation session started with both sides apart. Few cases started with opposing lawyers together but the disputants apart.
Disputants’ and Lawyers’ Participation
In civil cases, the disputants themselves made an opening statement or presentation in fewer than half of cases during initial joint sessions, and in even fewer cases during initial separate caucuses (see Figure 2). The disputants responded to questions or statements from the mediator in a majority of cases during initial joint sessions, and in even more cases during initial caucuses. During initial joint sessions, the disputants directly asked questions of or responded to questions or statements from the other side in fewer than half of cases, and they exchanged settlement offers with the other side in around one-fifth of cases. During initial caucuses, the disputants were more likely to ask questions of or respond to the other side and to discuss settlement proposals indirectly through the mediator, doing so in over half of cases.