Unlike trial courts, which operate under elaborate procedural rules, mediation has no formal procedural requirements – just a few customary procedures, e.g., joint opening sessions, opening statements, separation of the parties for caucus bargaining. Mediators are free to proceed as the situation may require or as the parties may request. If the parties request, for example, that counsel meet without clients, that clients meet without counsel, that the Mediator convene an additional joint session, or that the mediation conference adjourn to permit additional discovery, the Mediator is usually willing and able to accommodate. So take advantage of the procedural flexibility inherent in mediation: advise the Mediator when it might be helpful to modify a customary procedure or to employ an additional one.
Francis Carter
