What Are the Steps of Mediation?

By Ehsan Ali and Alnoor Maherali

We are frequently asked about the nature of our work. What happens in a mediation? How does mediation work? What does a mediator do? What are the steps of mediation? 

We tell people that mediation is a facilitated conversation between two or more people who are looking to come to an agreement or to resolve a disagreement - as an alternative to going to court. It is a voluntary and confidential process that gets people working together to achieve a better understanding of their issue(s) and to find workable and long-lasting solutions. The mediator helps to manage the process in a safe and structured manner. There are many different ways of conducting a mediation session, but the following are the common steps followed by mediators:

1. Introduction to Mediation

In a first session, the mediator introduces themselves, explains the process, and reviews the role of the mediator. Then, if they haven’t done so already, the parties all sign an agreement to mediate as well as a confidentiality agreement. The latter confirms that nothing discussed in the mediation should be used outside the session. Mediators then open the floor for the parties to ask any questions about the process before things move forward.

2. Information Gathering

In this stage, each person explains what brought them to the mediation, what they are hoping to achieve, and what outcome(s) they are seeking.  Some mediators refer to this as “uninterrupted time”; though oftentimes it is anything but! In many cases, this happens because mediation is the first time parties are really communicating with each other. The mediator uses this time to clarify certain statements, asks questions to learn more, and seeks to understand what the underlying issues and interests are of each person. This is usually where common ground begins to emerge. People generally come to mediation because they disagree about something, not because they cannot agree about anything. As mutual interests start to emerge, they form the building blocks for understanding to develop between the parties.

3. Building an Agenda and Generating Options

As core interests become evident, the mediator begins to craft an agenda based on what they have heard. If the parties agree, the agenda can provide structure and focus to the discussion and help them start to move towards potential solutions. If they disagree, it just means that more information gathering may be required. But when the parties do start to discuss their core interests, the mediator can help them to generate creative, value-creating options to address their concerns and to better ensure a positive relationship between parties going forward. At this stage, the goal is to get all the options on the table before rejecting any of them and the discussion continues until the parties feel there are no more options to discuss. New issues may also arise and they are acknowledged and discussed as needed. 

4. Assessing Options and Seeking Agreement/Understanding

Once options are generated, the mediator helps parties to assess them and determine which ones could work for them. This process leads to a discussion of what the terms of a potential agreement may look like. At this stage, the mediator may have to ask some difficult and pointed questions for the purpose of ensuring that any agreement will actually work for the parties and not easily fall apart. In the event that no agreement is reached, the mediator may help the parties to evaluate their alternatives. But more often than not, people who have made it this far will tend to come to some kind of understanding. If desired, this can be put into writing by the mediators in the form of a memorandum of understanding (MOU). Final copies are reviewed, signed and distributed.

5. Closing the Mediation

Once an agreement is reached, parties who want a binding legal document can take the MOU to an attorney and have them turn the agreement into a contract. And many times parties include an agreement to return to mediation if any problems arise with that contract. Either way, the parties have a set of solutions especially tailored to the issues they came in to discuss. With a resolution in hand, time that could otherwise be lost to costly conflict can then be better applied elsewhere - regardless of whether the dispute was personal or business-related.  

No two mediations are ever alike.  And though it varies based on the complexity of the dispute, they may not get resolved in a single session. But it never ceases to amaze and delight us when two people come into a mediation with no hope of a resolution yet walk out with a smile on their face and an outcome they had not expected. If you are looking for a faster, cheaper, and more effective resolution, contact us at Venn Mediation. We are based in New York but are experts in online mediation and can work with people anywhere. Disputes can be difficult, but dispute resolution doesn’t have to be. We would love to help.

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