This article is the second of two seeking to identify some critical decisions with which counsel must deal in embarking on mediation of a civil dispute. Part one involved some best practices in connection with the decision to utilize mediation, deciding when and how to initiate the process, how to prepare the client and how to select a mediator. This part involves decisions during actual mediation.

When Should the Actual Mediation Begin?

This is not a trick question: The mediation should actually begin before the parties come to the session. Premediation conversations which the mediator conducts with counsel, and if possible with the disputants directly participating, are enormously useful. Most likely these conversations will take place by phone, and they can pave the way for narrowing issues, anticipating problems and giving the mediator a good feel for options of how to proceed and avenues to explore. A good deal of the mediator's work needs to be done before the actual mediation meeting. Early ex parte communications are permitted in mediation, and they can be extremely productive.