Mediation Process

Mediation can be used at any stage of a dispute. It is usually less costly than litigating a dispute in court.

Every mediation begins with an opening statement. The style varies, but the purpose is to create the right atmosphere.

Each spouse will have a chance to talk about their situation with the attorney-mediator.
Identifying the Issues

In mediation, parties in dispute meet with a neutral third party, the mediator, to discuss their differences and negotiate a mutually acceptable resolution. Mediation is often used to settle labor-management disputes, international conflicts and contract matters as well as EEO, ADA and HR issues.

The first step in the mediation process is for parties to describe their positions and underlying interests in the dispute. Mediators frequently encourage participants to be open and candid in this phase. They may also ask participants to think about a solution that would meet both of their needs, and entertain general ideas for resolution.

It is common for negotiators to misperceive the legitimacy of their own or the other party’s feelings or misunderstand their own or the other’s position. A mediator can help negotiators understand their own perceptions, assess whether they are helping or hindering negotiations and help them revise their misperceptions. This can help parties gain a clearer understanding of their underlying interests and generate more settlement options.

Developing Options

A mediation may be a private, non-binding process that can occur independent of, or in conjunction with, any litigation. A court-referred or otherwise mediated dispute will often require parties to produce materials that would be subject to discovery or disclosure rules should the matter proceed to hearing, including statements of position, valuation reports and risk assessment analysis.

The mediator helps participants to express their positions, understand each other’s positions and explore possible resolutions. Sometimes this involves identifying the simplest issue to resolve and tackling that first, in order to provide a ‘quick win’.

In some cases, a mediator will suggest that the participants engage in a series of private consultations with their advisors and experts, particularly where they are unable to come up with an acceptable solution on their own. However, this should be kept to a minimum so as not to interfere with the momentum gained in the mediation sessions. In about 80% of all mediated disputes, the parties reach an agreement in which they share the benefits of a negotiated settlement.

Developing a Plan of Action

In mediation, disputants determine the outcome of their dispute, not the mediator. Unlike a court case, there are few procedural formalities in mediation and, with limited exceptions, all communications during a session remain confidential.

The mediator often encourages the parties to be clear, consistent and fair in their communication, to expose small vulnerabilities to one another and to negotiate with the goal of a win-win resolution. They may also be encouraged to use a variety of negotiation techniques and tactics such as offering options, providing concrete evidence, setting realistic time frames, using shuttle diplomacy and establishing ground rules.

During the first mediation session, mediators generally begin with an opening statement, describing their role, explaining mediation procedures including private caucuses and suggesting behavioral guidelines. Following this, the mediator will hold separate sessions with each party or their representatives in which they can discuss the issues in confidence. The parties can choose to address the issues in order of importance, on an ad hoc basis or by tying them to other agreements.

Developing a Final Agreement

Once the framework has been established, the mediator can begin to formulate a complete agreement. The details of the complete agreement will emerge as the mediation proceeds and, as the mediator explains, are largely a result of the dynamics of the particular case that has led the parties to engage in mediation.

At this point the mediator may also wish to have each party undertake private consultation with its advisors and experts. This is a particularly useful technique if exchanges in joint session are beginning to generate more heat than light.

It is important that the final agreement does not contain references to personal names and should, where possible, be drafted in such a way that it feels unique and “belongs” to both parties. This can help the parties feel a sense of ownership and can relieve fears that the mediation is being coerced or manipulated. It is important that any revisions in the agreement are negotiated at a separate meeting with each party and not in joint session.