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Mediation Script -- Introducing a Mediation Session.

Good morning. My name is __________. I will be your mediator today. Let me tell you briefly what my qualifications are. I am a lawyer, passed my first bar exam in 1982 and have been in litigation practice since then. I am also a mediator certified by ___________. and I have been participating in alternative dispute resolutions since about 1987.

You are to be commended for agreeing to participate in mediation, which is a proven, successful process. Since you are here by agree ment I know that you are committed to making the system work for you and in attempting to reach the best resolution for your dispute.

At the outset I should clarify that I have no connection with this case and that I know what I know about this case from the confidential position statements and other materials you have sent me. My knowledge of the parties and their positions is limited to what you have presented me. While this has allowed me some familiarity with your contentions, it is not enough for me to have formed an opinion or any preconceived ideas about the nature of your dispute or how it should be resolved.

Also, in case there is any question, I want to explain the mediation process. I am not a judge or a decision maker. My job is to facilitate communication and to help each of you think and communicate more clearly with the hopes that you will be able to reach a settlement.

My job is to probe and ask questions. My job is to help each of you explain your case to me in a manner that will help you reevaluate both your position and that will help you reevaluate the position of the other party with an eye twoards reaching a resolution of this disp ute.

By Texas State statute the mediation process is confidential. I will do everything in my power to assure that the process remains confidential. The presubmission materials,and any materials you give me here today are either returned to you or destroyed at the end of the mediation. My notes are destroyed at the end as well.

However, let me warn you that any information that can be independently discovered is not confidential as to the parties. Regardless of TRCE 408, I as a mediator cannot be compelled to come into court and testify as to any part of the mediation except that the case did or did not settle. That the case did or did not settle is the only disclosure that I will make as to the case. The reasons, so-called "fault" and other matters are all the subject of absolute priviledge as far as I am concerned.

Now let me briefly describe the procedure that we will be following today. When I finish my remarks, each party will make an opening statement. An opening statement is simply a statement of your party's position. It should take from five to twenty minutes.

Usually an opening statement includes the history of the dispute, the relief or resolution that you think is appropriate, and anything that you wish to add to shed light on the position of your client.

After each of you makes an opening statement, we will remain together for what is called the joint session. In the joint session I will ask questions from each of you to make certain that I understand your position and that I have all the information that I need.

At some point in our discussion we will will probably break into seperate groups called caucuses. During this time, each group will be in a different physical location. I will meet privately with one party and then with the next. This portion of the mediation usually lasts for several hours.

It is important for you to understand that during the private caucuses I may spend more time with one party than with another. The time I spend with each party has nothing to do with anything other than the number of questions I might have and is often influenced by special needs, such as directions to smoking areas, that have nothing to do with the dispute.

During the caucuses you will have an opportunity, if you wish, to disclose things to me that you want me to know, but that you do not necessarily wish for me to disclose to the other side.

I want to assure you that what you tell me remains confidential. I also want to remind you that if you want something disclosed you will need to give me permission to disclose it.

For this process to work I need your commitment on the issues of time and of authority. Mediation is a process and it takes time to develop. While I will not keep you here against your will, I would like your commitment to stay and work on resolving the dispute as long as I see progress being made. The reason I ask this commitment is that I am the only person who will have an overall picture of the progress of this dispute. Each of you will only have a partial picture. Are you willing to make this commitment to me now?

Good. Thank you. The next commitment I ask is that of authority. Do each of you have full authority to negotiate a settlement of this case? By authority I mean the ability to establish or change a position during the course of these negotiations, up to the amount of the last demand. I am not asking you to use such authority, I am only asking if each of you has full authority? Do you?

Good.

Our goal here is to reach an agreement. I again commend you for your commitment to this process and your agreement to participate. If you have no questions at this time we will begin with the opening statements.
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Copyright 2000 Stephen R. Marsh

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