How Does Mediation Work?

How does mediation work in practice? As compared with other forms of dispute resolution, mediation can have an informal, improvisational feel. Mediation can include some or all of the following six steps, writes Kimberlee K. Kovach in The Handbook of Dispute Resolution (Jossey-Bass, 2005):

1. Planning. Before mediation begins, the mediator helps the parties decide where they should meet and who should be present. Each side might have lawyers, coworkers, and/or family members on their team, depending on the context.

2. Mediator’s introduction. With the parties gathered together in the same room, the mediator introduces the participants, outlines the mediation process, and lays out ground rules. She also presents her goal for the mediation—for example, to help the parties come to agreement on the issues under dispute and improve their relationship.

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 disputants 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 split the two sides into separate rooms for private meetings, or caucuses. Often, but not always, the mediator tells each side that the information they share in caucus will remain confidential. The promise of confidentiality can encourage disputants to share new information about their interests and concerns.

6. Negotiation. At this point, it’s time to begin formulating ideas and proposals that meet each party’s core interests—familiar ground for any experienced negotiator. The mediator can lead the negotiation with all parties in the same room, or she can engage in “shuttle diplomacy,” moving back and forth between the teams, gathering ideas, proposals, and counterproposals.

When putting together your settlement proposal, professor Stephen B. Goldberg of Northwestern University recommends that you ask the mediator for her advice. Her conversations with the other side have probably given her knowledge of its interests that you can use when packaging your proposal.

About 80% of dispute mediations lead to resolution, according to Goldberg. Depending on the complexity of the issues, mediation might last mere 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 consensus, the mediator will outline the terms and may write up a draft agreement. If you fail to reach agreement, the mediator will sum up where you have left off and may engage you in a discussion of your nonsettlement alternatives.

Adapted from “Make the Most of Mediation,” first published in the Negotiation Briefings newsletter.

Originally published on January 26, 2010.

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