Stages of the Process

In mediation, parties typically participate in different kinds of activities. The parties will often help to design the mediation process and determine what happens and when it occurs. Frequently, the start of a mediation process actually precedes the first meeting of the parties.

Before the Mediation Session

Logistical arrangements - Once a mediator is selected, then the mediator works with the disputing parties (and their agents or representatives) to structure the mediation process. The time and place of the initial mediation session will be set. Additionally, who will attend the mediation will be decided.

Submission of pre-mediation documents - In some conflict, the disputing parties and/or mediator initiate the submission of documents or other information in advance of the first mediation session. Copies of the most important documents governing a case, or a summary of the parties’ positions, might be submitted to the mediator before the parties are convened.

At the Mediation Session

Opening (joint) session - Frequently, at an initial mediation session all of the disputing parties meet together. At this joint session, each may offer an opening statement that contains a some historical background, a summary of the disputed issues and, often, any initial proposals that have been made or that a party wants to make at that time. One or more participants may begin to vent emotions and frustrations at the previous chain of events that formed the conflict.

Private Caucuses - At some point in the mediation process, the parties may be organized by the mediator into private caucuses for individual meetings (or meeting of subgroups). Away from the other side (or sides), a party may disclose additional information or may simply feel more at ease in discussing and assessing his/her positions.

General Stages

Generally, a mediation process moves through several stages or phases. These stages are not always strictly sequential; instead, because of the nature of the dispute or characteristics of the parties, the stages may occur in different order, or a particular stage may be skipped. Some of the phases include the following activities:

Fact-gathering - At initial stages of the mediation process, at least some portion of the time is usually devoted to sharing and reviewing factual information. Frequently, the disputing parties agree to gather or exchange missing information, or information that is thought to have a bearing on the outcome.

Generating Options - In mediation, a mediator may encourage the disputing parties to reflect on the interests that are motivating them, rather than focus on the positional statements that may have been made at the outset. With the benefit of a deeper understanding, the disputing parties may realize that they have additional options to consider that were not “on the table” before. The mediator encourages the parties to make proposals that may move away from their initial positions and meet the interests of all involved. The mediator works with the parties to fashion creative solutions that are individually-tailored to the problem.

Exchanging Offers and Counteroffers - Frequently, in mediation the parties reach a point of exchanging offers and counteroffers. Merely by asking questions, the mediator may prompt them to evaluate their own claims and demands. The mediator may assist parties in deciding what to offer and the timing of an offer or counterproposal. If the parties are not speaking face to face, the mediator may communicate offers and responses from one side to the other and engage in “shuttle diplomacy” to keep the process going.

Overcoming Barriers - By listening to the disputants, and helping them to listen to each other, the mediator becomes more keenly attuned to any obstacles that may be obstructing agreement. Though neutral as to the actual outcome of the dispute, the mediator may become an “advocate for settlement” by helping to refine proposals and even to make constructive suggestions (that the parties are free to reject).

Agreement or Termination - Mediation concludes when there is agreement on the substantive issues, or the participants reach an impasse. Sometimes a mediation process encompasses many sessions before agreement is reached or the process is deemed by all to be futile. If resolution is not reached, or the parties cannot agree on whether it is fruitful to continue, the mediator may offer an opinion about the likelihood of further progress.