Whether you’re considering mediation for conflict resolution or have already initiated the process, it’s helpful to have a clear understanding of how mediation works and what to expect during the session. Knowing what typically happens at each stage can help parties participate more confidently and productively.
Because mediation offers a collaborative and confidential way to address conflict, many parties prefer to resolve their dispute through mediation when possible. Mediation can be more cost-effective and efficient than other dispute resolution methods and can also help preserve relationships. This article describes the key elements of mediation, including how parties choose a mediator, how they prepare for the mediation session, and the purpose of each step in the process.
Choosing a Mediator
First and foremost, the parties must agree on a mediator, or at minimum, agree to a mediator selection process. Parties have the option of selecting a mediator with specific subject-matter or legal expertise relevant to their dispute. For instance, if the dispute concerns a business relationship, the parties may seek a mediator with professional experience in that industry or with extensive experience mediating similar B2B disputes. Other factors may also influence the parties’ choice of mediator, including the mediator’s style, temperament, or rapport with the parties, credentials, and reputation.
Mediators who work with an established alternative dispute resolution (ADR) organization are typically held to a high standard. At the American Arbitration Association® (AAA®), mediators must meet strict baseline requirements, including applicable training, relevant professional licenses, and at least 10 years of senior-level experience in the relevant practice area. When choosing a mediator, parties often prefer to work with a respected administering organization. ADR providers like the AAA can assist parties in finding a professional mediator with proven expertise.
Preparing for Mediation
Convening
The convening stage is the first step in the mediation process, where the parties agree to mediate and file documentation initiating the process. When parties initiate mediation through an administering organization, such as the AAA, they must have agreed to mediate, either in a pre-dispute mediation agreement or in a post-dispute agreement to mediate. When filing a mediation with a provider such as the AAA, one or more parties may need to pay an administrative filing fee to start the process.
Scheduling and Preliminary Steps
After a mediation is filed and before a mediation session is scheduled, the parties may research potential mediators to determine if they’re a good fit and have the desired credentials. The mediator selection process may vary depending on the administering organization. At the AAA, the parties are directed to AAAi Mediator Search Tool to try to agree on a mediator. If the parties are unable to agree, at the parties’ request, the AAA provides a list of potential mediators for the parties to select from.
After the mediator is selected, the time and location of the mediation session are established, often during a scheduling call between the parties and the mediator. Mediation sessions can be held either in person or virtually. Although formal evidence isn’t required, parties may exchange documents or provide the mediator with necessary information beforehand, such as financial statements, contracts, or other relevant materials. Before the mediation, the mediator may organize separate pre-mediation sessions to meet with the parties, their representatives, and their counsel to learn about the background of the dispute. The mediator will confirm with counsel for the parties how any position statements will be submitted.
Mediation Participants
Participants in a mediation typically include the parties (or their business representatives, if the party is an entity), the mediator(s), and sometimes legal counsel. Parties may decide to retain legal counsel to participate in mediation or may choose to consult an attorney before initiating mediation. As neutral third parties, mediators are not permitted to give legal advice at any point during the mediation session, even if they have applicable legal experience or legal credentials.
How the Mediation Process Works
While mediation is less formal than arbitration or litigation, the mediation process is structured to provide an efficient and effective method for resolving conflict between parties. In mediation, the mediator helps facilitate productive discussion between the parties, but all decisions, including whether to settle, are made by the parties themselves. The exact structure of the mediation session can vary depending on the neutral’s mediation style and what the session requires, but mediation is typically organized as follows:
Introductions and Opening Discussion
To start, the parties and mediator may meet in a joint opening session. At the beginning of the session, the mediator introduces themselves to all parties and explains the applicable rules and expectations, as well as how the mediation process will unfold. The mediator may give a brief overview of their background and the role they will play during the mediation session. The parties will then have an opportunity to explain what brought them to mediation. Some mediators may decide that the best course of action for that specific mediation is to start in separate sessions, called caucuses, where the mediator meets with each side separately.
Identifying Interests & Issues
During this stage, the mediator and the parties work together to identify the key interests and issues at the center of the dispute. The mediator may help the parties identify the specific issues that need to be resolved and clarify the broader interests and priorities underlying each side’s position. This stage is important for helping the parties establish a more focused agenda, so they are better prepared to have a productive discussion.
Examining the Issues and Underlying Concerns
In the next stage, the mediator will help guide the parties to explore the issues in detail. The mediator may encourage the parties to discuss the issues together or continue in separate sessions. The mediator will ask questions to facilitate a productive discussion. The mediator aims to explore all important facets of the conflict and understand the concerns of each party. This process can also help reveal potential areas of flexibility, shared interests, or misunderstandings that may be preventing progress toward resolution.
Private Caucuses
At any point in the process, the mediator and parties may agree to separate for private caucuses with the mediator. Because mediation often involves contentious issues, a private caucus can give parties an opportunity to speak candidly with the mediator, especially if emotions run high during the session. The parties may also use caucuses to discuss sensitive issues, evaluate settlement options, monetary positions, or consider their next steps before reconvening in a joint session with the other side.
Although the parties may meet privately with the mediator, the mediator remains neutral and does not advocate for either side or assist one party in planning against the other. During private caucuses, the mediator may move back and forth between rooms — or between calls or virtual rooms if the mediation is conducted remotely — to share information, help each side assess its position, and explore whether the parties are moving closer to resolution.
Negotiation
By this stage, parties generally have a better understanding of the other side’s needs and what is most important for ending the conflict. With the mediator’s help, the parties begin exploring options for resolution, which may include discussing possible compromises or creative solutions that address each side’s primary concerns. The mediator guides this stage by helping the parties negotiate, narrow the issues, and prioritize areas where agreement may be possible.
Resolution or Closure
In the final stage, the parties may attempt to reach an agreement and resolve the dispute. This may include developing a written settlement with the help of legal counsel. However, not every mediation session ends with a full resolution to the conflict. In the next section, we’ll explore some of the potential outcomes of mediation in detail.
Possible Outcomes of Mediation
Unlike other forms of dispute resolution, the outcome of a mediation session is not a decision imposed by a third party. Instead, the parties themselves help determine how the mediation unfolds, and they have the final say in how the session resolves. Unlike arbitration or litigation, in a mediation, a third-party decision-maker does not issue a final award or judgment, so the outcome depends the parties: whether they can reach an understanding and agree on a resolution to the conflict.
In mediation, parties are typically able to resolve the dispute efficiently without the uncertainty and potentially higher legal expenses and costs that would come with arbitration or going to court. A written, signed mediated settlement agreement becomes a contract between the parties.
However, in some cases, the parties may be unable to reach an agreement by the end of the mediation process. If that’s the case, the mediator would typically try to determine whether the parties are open to future negotiations or whether the remaining disagreements make a mutually agreeable resolution unlikely.
If an agreement can’t be reached and the mediation ends without closure, one or more parties may decide to seek resolution through arbitration or litigation. Even if mediation doesn’t lead to a resolution, the parties often walk away from the process with a clearer understanding of the dispute and next steps.
What to Look for in a Mediation Provider
When deciding on a potential mediator or ADR provider to facilitate the mediation, parties often prefer working with an organization that helps streamline mediator selection and scheduling and provides a structured framework for the mediation process. A strong mediation provider should support the process while preserving the flexibility, confidentiality, and party-driven nature of mediation.
At the AAA, we help you find qualified mediators with extensive experience relevant to your dispute. Our mediation panel features well-respected mediators with expertise in handling a range of conflicts, including commercial, construction, employment, labor, and family and divorce disputes. We can also help you navigate the entire mediation process, from the initial filing to resolution. Learn more about our panel, standards, and how to get started with mediation.