What is the mediation process like?

In simplest terms, mediation is a conversation facilitated by a mediator, who is a neutral (or non-biased) party and who has training and experience in managing difficult conversations, and who works toward a mutually acceptable solution. Effective mediators apply a broad range of tools to identify the specific areas of conflict, fully explore the interests of the people in the dispute, and help them generate possible options for solutions. In a successful mediation, a mediator will help craft an agreement that the participants contributed to in the resolution of their matter. Like participants in a disputes, no two mediations are identical. A skilled mediator will have the ability to tailor the process to the case and participants, and the structure the conversation to unfold in a number of ways that works for that particular matter. Before the mediation, a mediator may have a preliminary telephone conference with the parties or their attorneys in order to plan for the mediation. Often, in cases with attorneys, each lawyer will then send the mediator a Pre-mediation Submission or Mediation Statement, designed to brief the mediator on the subject of the case and particular issues that are likely to be important. A typical mediation begins with arranging whatever the participants need to be comfortable. Whether it’s coffee, tea, snacks, water, tissues, or fresh air, a mediation should be as comfortable as possible. Breaks during a mediation for any purpose are always OK. Usually, all parties will convene around a table and the mediator will open the session by reviewing the purpose of the mediation and explaining how the process will be conducted. Participants sign an “Agreement to Mediate” (which is a commitment to participate in good faith, but which does not obligate anyone to reach any particular resolution). After opening remarks, the mediator may ask to hear briefly from each of the parties. Unlike being in a courtroom, parties will have an opportunity to speak without being interrupted: a skilled mediator will work to ensure that these statements are uninterrupted time. This is an opportunity for parties to express their view of the matter, their hopes for resolution, or anything else that may be productive. It’s also an important opportunity for the non-speaking side to learn about the speaker’s view of the case without needing to respond. Once all parties have had the opportunity to be heard, the mediator may choose to continue the conversation around the table, and may ask detailed follow-up questions to fully understand all parties’ views of the matter in dispute. Or, the mediator may choose to break into private conversations (sometimes called caucuses) to check in with each side privately. Often, a mediator spends significant time conveying information back and forth between parties in separate rooms. Sometimes, participants remain in joint session throughout the mediation and never break into separate rooms. It is important to keep in mind that the mediator controls the process, but that she or he does so with the input and consent of the parties. For example, if in a joint meeting one person would like to check in privately with the mediator, a good mediator will accommodate that request, and then also give the other person an opportunity for a private conversation. For people in conflict, the prospect of being at the same table with an adversary can be daunting. In the hands of a skilled mediator, the conversation follows a constructive pattern without subjecting anyone to abuse or extreme discomfort. Participation is invariably challenging, and sometimes uncomfortable, but most people leave a successful mediation with a great sense of relief.