Updated: November 20, 2020
The mediation process consists of six stages: consultation, the sit-down, the opening, communication, problem-solving, and closing/continuation.
If you’re thinking about using mediation, it’s a good idea to get a basic outline of mediation and this is what you can expect.
The Six-Step Mediation Process
1. Consultation
The first thing you should do is call/contact a mediator or mediation service, which is usually a company dedicated to conflict management and/or mediation. The goal here is five-fold:
To clarify your case to the mediator/service so that they can determine if mediation is appropriate
To understand their specific processes such as scheduling, payment structure, mediation model, etc.
Determine cost of mediation, who is billed, how cost is shared by parties
Qualifications of mediator(s)
Expectations. Talk about what you want out of a mediation and what may come out it. If you agree to mediation, then the mediator (or coordinator) will talk with the other party. If they agree to mediation, then an agreement to mediate will be sent to each party for their review and signatures.
2. The Sit-Down
Once a mediation session is scheduled (about 4 hours in length) the parties and mediator meet at an agreed location to participate in the mediation. The location should be private, quiet, and safe for all parties.
3. Opening
The mediator will provide an opening statement that may include procedural rules, logistics (restrooms, breaks, breakout caucus time, water/drinks, good faith, etc.), main talking points, etc. This is to get all parties on the same page and begin the mediation
4. Communication
Parties put forth their concerns in front of each and the mediator and ask questions, vent frustrations, argue their case, listen, and voice whatever their feel relevant. The goal is to get everything on the table for all to consider.
5. Problem Solving
The mediator may then transition* the parties to think about what might help each other achieve their interest(s). Some call this the Negotiation phase, but this indicates that parties have solutions and are willing to give/take portions of each. In Problem Solving, the mediator can help the parties develop new, innovative, creative ways to overcome the dispute in which they are engaged. Some proposed solutions may be non-starters, others may seem great but fold under “reality check” by the mediator. Both steps 4 and 5 may have private caucuses (meetings) between one party and the mediator.
6. Closing/Continuation
If an agreement is reached, and the mediator determines there is no bad faith within it, then the parties can sign a Memorandum of Understanding (MOU) stating that they will adhere to its provisions. If no agreement is reached at the end of the session, a new session can be scheduled, or the parties can withdraw from mediation. If the case was court-referred, then the mediator will issue a letter stating that the parties attempted mediation with no agreement that can be given to the court.
These are the main steps. Each case is unique and requires open communication with the mediator or mediation service. Using mediation as a leverage tool does not work; mediators see through this and consider it “bad faith”, thus refusing mediation. As the goal of mediation is to help parties resolve problems and come to agreements, it is up to the parties to determine how important that is and how committed they are to the process.
* Depending on the mediation and the mediator, a transition can be obvious, subtle, or progressive.