I took this from wolfpackvolt's description of the mediation process and inserted information relevant to our case. I hope this helps. I was joking earlier that one party would come out high 5ing but it appears that if done correctly, both parties come out relieved or not. 

I hope this helps Agora posters.

The Mediation
Mediation can be described as an assisted negotiation. Judge Faulkner is neutral and has no bias against any of the parties or their positions. Judge Faulkner is the facilitator who assists J3/TPL in reaching an agreement that is acceptable to them. The agreement is reached through the facilitated negotiation process typical of a mediation proceeding. Judge Ward  made decisions in the Markman Hearing. Judge Faulkner may be requested during the course of a mediation to provide his evaluation of the probable outcome of a dispute. If there is such an evaluation, it is done at the request of the parties but is not binding upon them unless they request and agree to it. (I don't think and am almost sure there is binding mediation in our case.)The formal procedures found in court  proceedings are not present in mediation proceedings. There are no rules of evidence or set procedures for the presentation of facts or positions. Before mediation commences, J3 and TPL and Judge Faulkner agree upon the procedures that will be followed. It is J3 and TPL's proceeding; they can fashion it in any way that makes sense to them and Judge Faulkner. This absence of formality provides for open discussion of the issues and allows the free interchange of ideas. Thus, it becomes easier to determine the interests of TPL and J3 and to fashion a solution that satisfies those interests.

The Mediators
Judge Faulkner  is an invaluable neutral resource to all participants in the mediation process. Lawyers, use the knowledge and skills of a neutral mediator to plan negotiation strategies and develop options for settlement. Judge Faulkner keeps the process focused and moving forward.

Judge Faulkner is a highly trained, experienced professional and mediator. Both TPL and J3 chose Judge Faulkner.

The Preliminary Meeting
Judge Faulkner probably met with TPL/J3 prior to the joint mediation session. It might have been a conference call  for the initial meeting.

This initial meeting or conference call provides:

• An introduction to the mediation process.
• An opportunity to discuss issues affecting settlement which are important for Judge Faulkner to know in advance
• An opportunity to determine what information would be helpful for Judge Faulkner to have at or in advance of the mediation.
• An appropriate time to discuss any concerns a party might have about the mediation and his/her role in the process.

The Joint Meeting
When all of the procedures have been agreed to and a mediation agreement has been signed, the mediation sessions are scheduled. The mediation today, September 25th commenced with a joint conference among all of the parties. The joint session provides an opportunity for J3/TPL, to express their view of the case to the other participants and how they would like to approach settlement. The opening statements are intended to begin the settlement process, not to be adversarial or a restatement of positions. This session may last anywhere from a few minutes to many hours depending on the number of participants and the complexity of the issues. The mediator will let you know in advance how to prepare for this session.

 

The Individual Sessions
After the initial joint meeting, the parties break up into separate groups and "shuttle diplomacy" commences. Judge Faulkner has a number of private and confidential meetings or caucuses with each of the parties, J3/TPL  to explore interests and settlement possibilities. Judge Faulkner shuttles back and forth between the parties, carrying various settlement proposals and communicating the interests and needs of each participant to the other participants. Judge Faulkner keeps information from the private sessions confidential unless authorized to disclose it.

Judge Faulkner will often act as "devil's advocate" in these sessions to explore how realistic the positions of the participants are and what is possible considering the no agreement alternative. Judge Faulkner often assists parties to prioritize interests and options for settlement and to assess the relative strengths and weaknesses of positions.

Once settlement is achieved, Judge Faulkner will record it for signature immediately to prevent second thoughts from destroying a good agreement.

Evaluation by the Mediator
Most mediations commence with the mediator as a facilitator not an evaluator. An early evaluation by a mediator often destroys his/her effectiveness to act as a neutral. When appropriate, and in consultation with TPL/J3, Judge Faulkner may provide a formal or informal evaluation and analysis of the case, to focus on strengths and weaknesses, likely outcome at trial, and value of the case. Quite often, risk analysis tools are used in the evaluative process. A mediator's evaluation is simply that and nothing more; it is not binding upon the parties unless the parties agree to the contrary.

Possible Follow Up's
In some cases, telephone conferences occur following mediation sessions if no agreement has yet been reached. Sometimes, further information is required for the process to continue or additional people may need to be involved in the decision making process.

Agreement
The mediator will work with counsel to finalize a settlement agreement and determine the procedures necessary for implementation. Judge Faulkner is available to provide assistance throughout the process