Mediation is often viewed by lawyers as a “this” or “that” on the spectrum from facilitative to evaluative. In reality, experienced neutrals view mediation as a process customized to the needs of the parties in a particular case. Similarly, many lawyers view the mediation process as involving either joint sessions or individual caucuses, when in reality experienced neutrals will consider a blended approach.

For instance, in one case, an initial joint session may be preferred to allow the neutral to bring parties and counsel together for an optimistic welcome and setting of the ground rules. The parties could then decamp to individual rooms with the mediator shuttling between separate caucuses, perhaps bringing the attorneys and/or parties together for expert presentations and documentation of the settlement. In another case, the initial joint session may not be necessary, so parties may proceed in individual caucuses until a joint session is held for expert presentations or documentation of the settlement. In brief, there are as many variations of this process as there are disputes.

While a flexible approach accommodates the style of the mediator and the parties in the room, in this time of COVID-19, further customization of the mediation process must be considered.

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