Mediation: The Six Stages

Pursuing a lawsuit can be costly. Using mediation, two or more people can resolve a dispute informally with the help of a neutral third person, called the mediator, and avoid expensive litigation.

Most mediators have training in conflict resolution, although the extent of a mediator's training and experience can vary considerably—and so can the cost. For instance, hiring a retired judge as a private mediator could cost you a hefty hourly rate. Alternatively, a volunteer attorney might be available through a court-sponsored settlement conference program or the local small claims court for free.

The Role of the Mediator

Unlike a judge or an arbitrator, the mediator won't decide the case's outcome. The mediator's job is to help the disputants resolve the problem through a process that encourages each side to:

• air disputes
• identify the strengths and weaknesses of their case
• understand that accepting less than expected is the hallmark of a fair settlement, and
• agree on a satisfactory solution.

The primary goal is for all parties to find a solution they can live with and trust. Because the mediator has no authority to impose a decision, nothing will be decided unless both parties agree to it. The process focuses on solving problems economically—for instance, taking into account the cost of litigation rather than uncovering the truth or imposing legal rules.

That's not to say that the case's merits aren't factored into the analysis; they are. The mediator will assess the case and highlight the weaknesses of each side, the point being to hit home the risks of faring far worse in front of a judge or jury and that the penalty or award imposed will be out of the litigants' control.

Types of Problems Solved With Mediation

When litigation has commenced, it's common for courts to require some form of informal dispute resolution, such as mediation or arbitration, and for a good reason—it works. But it isn't used solely in the court setting. Anyone can suggest solving a problem through mediation. Neighbor-to-neighbor disputes or other personal issues can be resolved quickly without initiating a lawsuit.

Examples of cases often resolved through mediation include the following:

• personal injury matters
• small business disputes
• family law issues
• real estate matters, and
• breach of contract cases.

Mediation Length

How long it will take to resolve a problem through mediation depends on the case's complexity. Somewhat straightforward matters will resolve in a half day. More complicated cases will require a full day of mediation, with the negotiations continuing after the mediation ends.

If the mediation doesn't settle, either side can file a lawsuit or continue pursuing the current case. Learn about the timeline for a personal injury lawsuit.

How Mediation Works

Many people think mediation is an informal process in which a friendly mediator chats with the disputants until they suddenly drop their hostilities and work together for the common good. Although it can encompass these attributes, most mediations follow a somewhat formal process.

The multi-stage mediation process follows a tried-and-true formula designed to get results. Although less formal than a trial or arbitration, distinct mediation stages account for the system's high success rate.

Stages of Mediation

Most mediations proceed as follows:

Stage 1: Mediator's opening statement. After the disputants are seated at a table, the mediator introduces everyone, explains the goals and rules of the mediation, and encourages each side to work cooperatively toward a settlement.

Stage 2: Disputants' opening statements. Each party is invited to describe the dispute and its consequences, financial and otherwise. The mediator might also entertain general ideas about resolution. While one person is speaking, the other is not allowed to interrupt.

Stage 3: Joint discussion. Depending on the participants' receptivity, the mediator might encourage the parties to respond directly to the opening statements in an attempt to further define the issues.

Stage 4: Private caucuses. The private caucus allows each party to meet privately with the mediator. Each side will be placed in a separate room. The mediator will move between the two rooms to discuss the strengths and weaknesses of each position and exchange offers. The mediator will continue the process as needed during the time allowed. It's in these private meetings that the hard work of mediation is done.

Stage 5: Joint negotiation. After caucuses, the mediator might bring the parties back together to negotiate directly, but this is unusual. The mediator usually doesn't assemble the participants until a settlement is reached or the time allotted for the mediation ends.

Stage 6: Closure. If the parties reach an agreement, the mediator will likely put its main provisions in writing and ask each side to sign the written summary of the agreement. If the parties don't reach an agreement, the mediator helps them determine whether it would be fruitful to meet again later or continue negotiations by phone.

Find out why you should reduce your settlement to writing after your mediation.