The Mediation Process

The mediation process involves two (or more) clients working directly with a mediator to resolve a dispute. Sometimes mediation only takes one meeting, but more often mediation involves a series of meetings. Lawyers may be present at mediation, although they don’t have to be. The mediation process is similar to the Collaborative Law process, but tends to be a more streamlined process than Collaborative Law.

Facilitative Mediation. Mediation is really just a facilitated conversation where the mediator uses his or her skills to help people communicate and negotiate more effectively. The mediation process typically consists of the following steps:

The parties share background information to the mediator so that the mediator has some context in which to understand the dispute. The mediator will make sure that both people an opportunity to speak.

The parties share their perspective on the issues to be resolved. The mediator assists the parties in identifying all issues that need to be resolved. It’s not unusual for one or both parties to not realize that the other person may have different or additional concerns to address.

It’s necessary to gather and exchange information. Some information gathering may have occurred prior to mediation. In either case, the mediator can help identify the information that needs to be gathered.

Mediation is premised on “interest-based” negotiation. It’s important to differentiate between “interests” and positions. An interest is “the why” whereas a position is “the what”.  Put differently, a position is what you want and an interest is why you want it. The goal of mediation is to maximize both clients’ interests as part of a settlement.

The mediator will help the clients identify options. It’s tempting to just begin making offers, but if you skip generating options you may miss out on even better ideas.

It is important to discuss all options and how they meet the clients’ interests. The best options are ones that address shared interests of the clients.

After discussing interests and options, it’s time to bring everything together and reach agreements. This may go fairly quickly or could be a very length process. This part of the process may feel like a discussion, but it may also feel more like a negotiation.

The last step in the process is to document the agreements reached. Some mediators will prepare a “Mediated Agreement”. This is a private contract between the parties. Other mediators will prepare paperwork that gets filed in court. Some mediators will provide a summary for the clients to bring to their lawyers. Different states have different rules about what mediators can prepare for you.

The mediator may assign “homework” in between mediation appointments. This usually involves gathering additional information (e.g., updated account values, property appraisals), but it may also be assessing options or “sleeping on” an agreement that was reached.

Attorney Review. Clients are strongly encouraged to consult with attorneys as part of the mediation process, although they are not required to do so. This may include meeting with an attorney in between mediation sessions or just having an attorney review the final agreement. Working with a mediator is not a substitute for getting legal advice. Mediators can provide information but cannot provide legal advice.

Evaluative Mediation. The mediation process can look different depending on the context. For example, if you have a case that is about to go to trial, sometimes a “settlement” mediation will be scheduled. Settlement mediation is usually scheduled all day and often involves evaluation mediation. Evaluative mediation often consists of the mediator trying to move both sides toward a midpoint. Sometimes the mediator will tell participants what the mediator thinks the agreement should be. Often the clients will be in different rooms with their own lawyers and the mediator will go back and forth between them. 

Note: There are differences between all-day “settlement” (evaluative) mediation and facilitative mediation. focuses on interest-based facilitative mediation.


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