the jams mediation process

Mediation: the process, and how it works

Mediation is a process where the parties in dispute meet with a mutually selected impartial and neutral person who assists them in the negotiation of their differences. It is a facilitated negotiation.

Role of the Mediator

Mediation leaves the decision power totally and strictly with the parties. The mediator does not decide what is "fair" or "right," does not assess blame nor render an opinion on the merits or chances of success if the case were litigated. Rather, the mediator acts as a catalyst between opposing interests attempting to bring them together by defining issues and eliminating obstacles to communication, while moderating and guiding the process to avoid confrontation and ill will. The mediator will, however, seek concessions from each side during the mediation process.

Procedures: Joint Session Followed by Private Caucuses

Mediation generally begins with a joint session to set an agenda, define the issues and ascertain the position and/or concerns of the parties. This allows the parties to attack the resolution process either on an issue-by-issue or group-by-group basis. 

The joint session is then followed by a separate caucus between the mediator and each individual party or their counsel. This allows each side to explain and enlarge upon their position and mediation goals in confidence. It also gives the mediator an opportunity to ask questions which may well serve to create doubt in an advocate's mind over the validity of a particular position.

Process Proficiency

JAMS neutrals are on the case long before the day of mediation and don't consider their job done until settlement is achieved. They are dedicated to the entire mediation process, from reading the written statements to final execution of the settlement agreement.

Pre-mediation calls—JAMS mediators often provide parties the opportunity for pre-mediation calls in order to discuss:

  • how to craft a mediation process tailored to your dispute
  • when the mediation should take place and who should attend
  • how to exchange information and whether opening statements will be allowed
  • issues the mediator should be aware of that are not included in the written statements

During the mediation session—Using their extraordinary interpersonal skills, JAMS mediators listen closely to all perspectives, quickly evaluate party dynamics and establish rapport, leaving ample time for them to focus on:

  • what issues are in dispute and what might motivate each party to settle
  • making candid observations when appropriate and assisting both sides in assessing risk, overcoming impasse
  • pursuing creative, collaborative solutions that are consistent with the facts of the case and geared toward preserving mutual interests and ongoing relationships
  • ensuring that all parties trust the process and feel they have been heard and that all reasonable prospects for settlement have been considered
  • guiding parties toward resolution

Post-mediation—In the event that all issues are not resolved during the mediation session, JAMS mediators are tenacious and follow up in an effort to keep parties engaged in the process and focused on resolution. They will persist until the case settles or every conceivable option has been exhausted.

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