Negotiations have reached an impasse, but both sides agree on one thing: you need help resolving the dispute. You engage a neutral mediator to do just that. Rather than acting as a judge who decides who “wins” or “loses,” a third-party mediator assists parties in reaching an agreement.
Negotiators often feel unprepared for mediation. The very fact that your “negotiation” is now officially a “dispute” is enough to make you approach the next stage with trepidation. Here’s how the mediator is likely to proceed and how to take advantage of his presence to secure the best possible deal for your company.
Stage 1: The Joint Session. Though your mediator may contact you and the other side in advance regarding logistical matters, mediated negotiations typically begin with a joint-session that serves to educate the mediator, to uncover any differing views of the facts, and to clarify what each side considers a satisfactory resolution to be. The number of people present will vary, but each side generally includes a spokesperson (typically a lawyer), one or more people involved directly in the dispute, and someone with the authority to enter in to recommend a binding settlement.
At the joint session, the mediator is likely to encourage all participants to introduce themselves and present what they view to be the facts and the desired outcome of the dispute. The mediator will also ask questions that enable him to better understand the dispute and its underlying dynamic.
Some mediators will continue discussions in joint session, hoping that the open exchange of views will quickly resolve the dispute. Many mediators, however, will at some point move to a second stage of separate meetings with each party known as caucuses. One mediator says that she transitions to the caucus stage when exchanges in the joint session begin to “generate more heat than light.” If emotions are running especially high, the mediator might bypass the joint session altogether and proceed directly to caucuses for fear of undermining settlement efforts.
Stage 2: Caucuses. Your mediator will typically begin separate sessions with each party with a statement such as this: “As you know, whatever you say to me in caucus is confidential. I will not repeat anything to the other side that you don’t want me to repeat.” Having provided this assurance, the mediator begins collecting information about each side’s interests. He’ll want to know the underlying needs or concerns implicated in the dispute, as well as the importance you attach to each.
Armed with such information, the mediator begins moving back and forth between the teams for a series of conversations, suggestions, proposals, and counterproposals aimed at building a resolution that will satisfy each party’s core interests, a process sometimes called shuttle diplomacy. The mediator will want to know what settlement terms you’d find acceptable – and that you think the other party might accept. He may also try to identify your non-settlement alternatives.
Depending on the complexity and importance of the matters in dispute, it can take several hours, days, months, or even longer to reach an agreement. Ultimately, mediation leads to resolution approximately 80% of all mediated disputes. Sometimes the resolution is truly “win-win.” At other times, one side is thrilled with the deal, and the other considers it barely acceptable – though better than a long, uncertain, and expensive journey through the courts.

Adapted from “Get the Best Deal Possible in Mediation,” by Stephen B. Goldberg (professor, Northwestern Law School), first published in the Negotiation newsletter, November 2006.