Steps of Mediation

The process of mediation can be described in a few basic steps.

1. The parties determine that there is a dispute which cannot or will not be resolved through litigation. They may have determined that litigation is too costly, or they may have initiated litigation only to have the court direct them to mediation. Or the parties may have a previous contract that requires them to attempt to resolve a dispute via mediation. Such an agreement may require the parties to negotiate before seeking mediation and may require the parties to seek mediation before resorting to arbitration or litigation.

2. Once mediation is initiated, the parties must choose a mediator. Many organizations—including the Trademark Mediators Network—provide lists of mediators, listing their qualifications, experience and other relevant information. The parties may choose a mediator based on technology, culture, experience, analytic capability, work in the area or other factors. If the parties do not agree on how to choose the mediator, they may agree to allow an association of mediators to choose the mediator.

3. In choosing the mediator, the parties should keep in mind the timeframe in which they wish the mediation to occur. That time frame can be as little as one week or as long as a few months, though typically the time frame is no more than a few months. The parties should determine that the mediator is available and has sufficient time to conduct their mediator within their desired timeframe.

4. Both parties sign an agreement of mediation, which includes the mediator’s fee.

5. After the agreement of mediation is signed, each of the parties sits down with the mediator to discuss their positions in the dispute and what they would like to happen as a result. The mediator spends a few hours with each party separately, and the conversations are confidential. If the mediator determines certain things discussed should be presented to the other side, the mediator will ask a party if such confidential information can be conveyed. If a party does not agree for such information to be conveyed to the other party, the mediator does not convey it.

6. After initial conversations, each party is normally required to present to the mediator a 5 to10 page brief that sets forth the case and the facts as that party sees it and a resolution that they will be satisfied, including any monetary award which would be appropriate for the case. None of this information is conveyed to the other side, unless it is agreed by the party making the statements. The mediator reviews this information and is prepared to have a first session with the parties and their representatives, including someone who is able to make the decision to settle a resolution after the mediation begins.

7. The mediation maintains itself through the initial statements of the parties and conversations. In an approach that is gaining popularity, the mediation may be conducted at all times with all parties in the same room. The traditional approach, however, involves the mediator’s conversations with each party individually while the other party sits in a separate room. Under this scheme, if the mediator believes that it is appropriate for the parties to get together from time to time to discuss and resolve certain issues, he or she will facilitate such a face-to-face meeting. Normally, however, a joint meeting does not happen until the very end of the session, when both parties have come close to a business decision. The mediator never forces the parties to make business decisions. The mediator may be analytical (studying and commenting upon the merits of the parties’ positions) or may simply be a facilitator for the parties to talk to one another. That is a choice that the parties can make and one which is offered by the mediator.

8. After all discussions are complete and there is what appears to be a resolution, the mediation can come to an end, or can be restarted at some appointed time in the future. If it has come to successfully end, normally the parties sign an agreement to which they are bound before they leave the mediation room.

©2013 International Trademark Association