Frequently Asked Questions

[back to FAQ]

How Does the Mediation Process Work?

While all mediations vary, most follow the same basic pattern:

1. Outline the nature of the dispute - if the case is small and there are no lawyers involved, a case manager or secretary usually will consult with the parties and summarize the dispute for the mediator in a short paragraph. Parties represented by lawyers generally submit a short summary of the case. This summary typically highlights their demands, provides support for their positions, and indicates the procedural status of the case, which is relevant if the parties are preparing for a trial. The mediator will review these statements to obtain background information prior to the mediation.
2. The Mediator's Opening Statement - At the outset of mediation, the mediator, the parties and any support persons or attorneys accompanying the parties usually will be together in the same room. The mediator typically begins the mediation with an opening statement, in which he or she sets the agenda and defines his or her role as neutral thrid party. The mediator will explain that he or she is not a judge, and thus will not be issuing a ruling of any kind, and that the process is confidential. He or she will also point out any circumstances in which the process will not be confidential, such as those involving threats of imminent harm. Often the mediator will check with the parties to ensure that they are the appropriate parties for the mediation (i.e., that they have authority to settle the dispute). The mediator will also confirm that he or she has no outside involvement with either party, and will state that he or she is impartial. He or she will also set ground rules regarding civility.
3. The Parties' Opening Statements and Dialogue - Each party has an opportunity to tell its story, either on its own or through an attorney. The person who initiated the mediation usually goes first; the mediator then invites the second party to give a brief statement. Dialogue is then initiated between the parties by asking some questions about the dispute. At this stage of the proceedings, the mediator is gathering information, and the parties are exchanging information. The parties are free to discuss whatever topics they would like.
4. Caucusing - Caucusing means that the mediator may meet privately with each side to assess its needs and interests, identify common ground, explore settlement options, and smoke out hidden agendas. Often the mediator may shuttle back and forth between rooms while the parties remain separated. This is sometimes called 'shuttle diplomacy,' and the mediator can use it to present various proposals at one time, or take the same proposal back and forth a few times. If the parties can reach agreement during the shuttling, the mediator may call the parties and/or the lawyers back together to document the agreement.
5. Agreement - If the parties reach an agreement, the mediator may document in writing the substance of that agreement. Sometimes written agreements are signed by the parties, and sometimes not. When attorneys are involved, the mediator is more likely to list the decisions of the parties in a document called a memorandum of understanding. The attorneys will then translate the memorandum into legal language, add standard terms, and draft a formal contract or court submission that will become legally binding.

If a court-appointed mediator brokers an agreement between parties involved in a lawsuit, the parties generally agree to drop the suit. Most judges will order that a lawsuit be dropped without prejudice, i.e. if one party does not comply with the agreement reached, the other party can resume the lawsuit.

If no agreement is reached, the mediator will facilitate a discussion between the parties about their options. Sometimes when the parties consider their alternatives to reaching a mediated agreement, they begin to make concessions.