How Does The Mediation Process Work?

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by Jessica A. Stepp February 2003

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There are 6 steps to a formal mediation; 1) introductory remarks, 2) statement of the problem by the parties, 3) information gathering time, 4) identification of the problems, 5) bargaining and generating options, and 6) reaching an agreement.

Introductory Remarks

The mediator will wait until both parties are present and then make introductions. The physical setting will be controlled so that no party feels threatened. Most mediators will ask that if children are present, they wait outside. The mediator will then give an opening statement. This outlines the role of the participants and demonstrates the mediator’s neutrality. Some mediators will make comments about what they see as the issue and confirm the case data if briefs have been pre-submitted. Next, the mediator will define protocol and set the time frame for the process. There will be a review of the mediation guidelines and the mediator will briefly recap what it is that he has heard as the issues.

The opening statement during the introductory remarks will set out the ground rules for the mediation. These ground rules are what help the mediation move along smoothly. The mediator will usually ask that if attorneys are present, they can confer, but the clients should speak for themselves. Parties should not interrupt each other; the mediator will give each party the opportunity to fully share their side of the story.

Statement of the Problem by the Parties

After the opening statement, the mediator will give each side the opportunity to tell their story uninterrupted. Most often, the person who requested the mediation session will go first. The statement is not necessarily a recital of the facts, but it is to give the parties an opportunity to frame issues in their own mind, and to give the mediator more information on the emotional state of each party. If there are lawyers present who make the initial statement, the mediator will then ask the client to also make a statement. The rationale behind the statement of the problem is not a search for the truth; it is just a way to help solve the problem.

Information Gathering

The mediator will ask the parties open-ended questions to get to the emotional undercurrents. The mediator may repeat back key ideas to the parties, and will summarize often. This helps the mediator build rapport between the parties, especially when a facilitative style is used.

Problem Identification

This might also be part of other segments. The mediator tries to find common goals between the parties. The mediator will figure out which issues are going to be able to settle or those that will settle first.

Bargaining and Generating Options / Reaching an Agreement

Methods for developing options may include group processes, discussion groups or sub groups, developing hypothetical plausible scenarios, or a mediators proposal where the mediator puts a proposal on the table and the parties take turns modifying it. However, the most commonly used method is the caucus.

Once the participants are committed to achieving a negotiated settlement, the mediator will propose a brainstorming session to explore potential solutions. This can lead to a final agreement, which diffuses the conflict and provides a new basis for future relations.

The mediator may decide to hold private sessions with both parties in order to move the negotiations along. This caucus session will be confidential. The caucus provides a safe environment in which to brainstorm and surface underlying fears. The goal of the session is to find some common ground by exploring lots of options, and to bring about possible solutions for the parties to think about. Parties can also entertain alternative solutions to their problems without committing themselves to offer the solutions as concessions.

Biography

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Jessica A. Stepp is a graduate of Loyola Law School and a Los Angeles based mediator. Besides being a DRS Certified Mediator for the Los Angeles County Bar Association and an appointed mediator with the Los Angeles Superior Court, she is the executive director of a private mediation organization. Ms. Stepp currently mediates in the areas of professional malpractice, attorney settlement, general litigation, employment law, family law, property disputes and is available for private mediations.

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Website: www.LACountyMediations.com

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Clarence ,   Fort Worth TX	11/05/11
Home Damages Recovery
We purchased a microwave from a large local business. They in turn contracted the installion process to another company. The other company drilled a hole in the wall to hang the unit and hit an air conditioner freon line. Both companies told us to do repairs and submit a claim. It was under $1000 for repairs to the home and my wife cleaned and cleaned and submitted a $150 for cleaning. At first they said it was not their fault and declined libabilty. Later they came back and offered about half of what it cost us. If I enter mediation am I bound by the outcome and we will then not be able to file in small claims court? Will then the judge review the mediation? I just don't know which way to go. Thank you. Add New Comment

Diane ,   North Richland Hills Tx	06/25/11
mediation process
my son was in an accident and his lawyer decided on mediation. my son does not agree with the final results as the amount will not cover his medical bills. What recourse does my son have? Add New Comment

tamara ,   Chattanooga tn	tamarray423@yahoo.com      11/15/10
upcoming mediation
Hi Jessica, I wish that you go futher to include what to do and what not to be done by a mediator during mediation. Also, I am about to endure a mediation session (my first) with workers comp. through a employer of 7years because of my on the job Injury. I had to have surgery to my left thumb Arthroplasty, Tendon Transfer and Carpel Tunnel Release. They are offering a buyout 50,000 with no future medical expenses. However, I am still in pain with limited range of motion THANK YOU,TAMARA Add New Comment

tamara ,   Chattanooga tn	11/15/10
upcoming mediation
Hi Jessica, I wish that you go futher to include what to do and what not to be done by a mediator during mediation. Also, I am about to endure a mediation session (my first) with workers comp. through a employer of 7years because of my on the job Injury. I had to have surgery to my left thumb Arthroplasty, Tendon Transfer and Carpel Tunnel Release. They are offering a buyout 50,000 with no future medical expenses. However, I am still in pain with limited range of motion THANK YOU,TAMARA Add New Comment

T. Arthur ,   Bethel CT	11/09/10
Mediation: An Annoying Formality in My Case
I am about to endure a mediation session (my first) with a client who I know, with absolute certainty, will not see reason and settle my dispute with her by paying me in full, on the spot, for my professional services rendered several months ago. I would prefer to proceed straight to a trial by judge as that would save me considerable expense and time. Very well. I am going to treat this mediation as I would if I were entering a council of war. and I fully intend to approach this case as a matter of life and death WHEN it goes to trial. I have a strong case for winning a final judgement, and I deeply resent having a mediation wasting my precious time that I could better spend by going straight to trial. Mediation ought to be optional, in every case, and not foisted upon either party ! It insults my intelligence, and it is politically correct rubbish in its basic philosophy of conciliation and compromise. To hell with that philosophy, and to hell with mediation ! Add New Comment

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