The importance of an Agreement to Mediate
Before mediation begins (and assuming the Mediator determines the case is appropriate for mediation), the parties should sign a Mediation Agreement or an Agreement to Mediate. which sets out the principle terms of the mediation process. This step is an key point and an important opportunity for the parties and the mediator to turn their minds to issues like confidentiality, the roles of all the participants in the mediation, caucusing, how legal advice will be obtained, cost and many other issues. The clearer the terms of the Mediation Agreement, the more transparent the process will be to all and the firmer the footing for the mediation dialogue. For example, what the mediator can share (if anything) with a party if information came to him or her in the context of a causus (one-on-one meeting) with the other party should be addressed by the Mediation Agreement. Whether the mediation will be open or closed, in other words, whether any content of the mediation can be shared by either of the parties in a court proceeding, for example, should also be explored and confirmed in advance.
I do not begin actual mediation sessions until an Agreement to Mediate is signed by both parties, after they have had ample opportunity to consider it in draft and ask any questions about it.