What to Expect During Mediation

Compared with other forms of dispute resolution, the mediation process can have an informal, improvisational feel. This is due to the nature of mediation; wherein, parties have the freedom to craft their own solution to best address the particular needs of their dispute, under the guidance and assistance of a trained mediator. During this process, the mediator may employ some or all of the following six steps:

1. Planning.

Before the mediation process begins, the mediator helps the parties decide who should be present, (each side might have lawyers, co-workers, and/or family members, depending on the type of conflict). The mediator also helps the parties formulate topics to be addressed during mediation.

2. Mediator’s introduction.

With the parties gathered together during the mediation, the mediator outlines the mediation process and lays out ground rules. The mediator also presents the goals for the mediation process: to help the parties come to a negotiated agreement on the issues in dispute.

3. Opening remarks.

Following the mediator’s introduction, each side has the opportunity to present its view of the dispute without interruption. In addition to describing the issues they believe are at stake, they may also take time to vent their feelings.

4. Joint discussion.

After each side presents its opening remarks, the mediator and the parties are free to ask questions with the goal of arriving at a better understanding of each party’s needs and concerns. Because disputing sides often have difficulty listening to each other, mediators act like translators, repeating back what they have heard and asking for clarification when necessary. If parties reach an impasse, mediators diagnose the obstacles that lie in their path and work to get the discussion back on track.

5. Caucuses.

If emotions run high during a joint session, the mediator might have the parties go into separate virtual rooms, (via Zoom), for private meetings, or "caucuses." The private meetings and discussions that take place are confidential.

6. Negotiation.

At this point, the parties might begin "brainstorming" to generate creative ideas and proposals that meet each party’s core interests, with assistance from the mediator. Other mediations are conducted by "shuttle mediation," where the mediator separates the parties into separate "virtual" rooms and goes back and forth between the parties, sharing ideas, proposals and counter-offers.

Conclusion.

Depending on the complexity of the issues, mediation might last a few hours, or it could take days, weeks, or months to resolve. Some resolutions will truly be “win-win;" others will be just barely acceptable to one or both sides—but better than the prospect of a continued fight or court battle.

If the parties come to a consensus, the mediator will outline the terms and may write up a Memorandum of Agreement for the parties to sign. If the parties are unable to reach an agreement on all matters, the mediator will sum up the issues that were agreed upon and document where the negotiations left off.

*** This article is adapted from “Make the Most of Mediation” first published in the 2009 issue of the Negotiation newsletter, https://www.pon.harvard.edu/daily/mediation/dispute-resolution-how-mediation-unfolds/