Understanding the Mediation Process via Case Flow Diagrams

When we talk about defining a mediation process, it's important to take both high-level and low-level looks at how a case is handled. Low-level concerns include, for example, how you take payment or how you share confidential documents with clients. At the highest level, we are concerned with the general flow of a case, from initial contact to resolution. Different mediators have different case flows; below you will find diagrams for some of the most popular case flows.

The Basic Flow: Contact to Conclusion

Let's start with the most basic case flow, which is the starting point for most mediation trainings. After initial contact with the clients, you have a joint session. If the clients reach a final agreement, you're done. If they haven't reached a final agreement, you schedule another session. Repeat as needed.

Basic Mediation Case Flow

Basic Mediation Case Flow

If you will be drafting an agreement for the clients, whether it's a contract or a memorandum of understanding, the process is a bit more involved. Once the clients reach an agreement, you write up a draft that you provide for their review (ideally with advice of counsel). If they confirm that the draft represents their final agreement, then you're done. Otherwise, you return to joint session and continue the process.

Basic Mediation Case Flow with Drafting

Basic Mediation Case Flow with Drafting

Variations on this case flow are certainly possible and aren't reflected in the diagram. For example, you might start drafting the agreement over the course of several sessions, but not present it to the clients until you've reached a logical stopping point in negotiations.

Case Flows with Caucusing

As I write this, we're in the middle of the U.S. presidential primary season, so "caucusing" is an unfortunate word to bring up — but it is the most commonly used term for meetings that a mediator holds with parties individually.

Different mediators approach caucuses differently. Some refuse to ever caucus with clients, while others insist on it as a mandatory initial step in the mediation process. The pros and cons of each approach are beyond the scope of this article, except to consider what a case flow might look like with caucusing.

For example, some mediators make caucusing mandatory at the beginning of a case, to give each party at least one opportunity to share thoughts and information outside of the other party's presence. If you start with a joint consultation, the initial steps of a mediation with mandatory initial caucusing might look like this.

Mandatory Caucusing After Joint Consultation

Mandatory Caucusing After Joint Consultation

Or, you might prefer to caucus before ever having a joint session, with key parts of your consultation being handled with each client individually.

Mandatory Caucusing Before First Joint Session

Mandatory Caucusing Before First Joint Session

Even if you don't make caucuses mandatory at the outset of a case, you might want to leave open the possibility of caucusing in the middle of a case. These caucuses can take a couple of different forms. They might be breakout sessions in the middle of a joint session, where the parties return to the joint session immediately. Or, they might be separately scheduled meetings. This diagram includes both options.

Breakout and Scheduled Caucusing During Mediation

Breakout and Scheduled Caucusing During Mediation

These diagrams aren't revolutionary, and the different options presented here will be very familiar to experienced mediators. Still, it can be helpful to see information presented in a new format. You might even consider making your own version of a case flow diagram and sharing it with new clients, so they have a clear picture at the outset of how your mediation process works. Mediation is a new experience for most clients, and they tend to appreciate any information the mediator can provide that helps set their expectations.

Do you have a different flow than the ones described here? Any diagrams of your own to share? Let me know!