Next, each side presents its viewpoint on the dispute. The merits of the case may be front and center, or the parties may choose to discuss the larger context of the dispute and the shape or benefit of a resolution they prefer. The discussion may end here, or the mediator may develop an agenda of items for further discussion, either matters in dispute in the legal proceedings, or elements of an agreement that must be considered.
Most mediations proceed from here to separate caucuses, in which the mediator meets with each side separately. The negotiating positions and interests will be discussed in greater depth at this stage. The parties explain in greater detail the basis for their view of the dispute, especially on the most critical disputed points, at a legal level, at a business level, and at an emotional level. They formulate offers and counteroffers for the mediator to convey. In doing this, the mediator should be listening to the parties and their counsel and demonstrating an understanding of their viewpoint, and also providing feedback (“reality testing”) on their prognostications. The mediator also plays an important role as negotiation coach if the parties appear to be headed toward impasse, calling their attention to that risk and challenging them to find ways to keep the negotiation on track. If impasse is reached, the mediator may seek to break the impasse through any number of strategies.
By the end of a few hours, or more often, a day, the parties generally have spent enough time going over their risks and options, and have negotiated with one another sufficiently, that the terms of a settlement are agreed upon and the dispute is resolved. The mediator then gets the parties to reduce the agreement to writing to ensure that both are committed to the same thing.
When settlement does not occur, the mediator should understand why and determine if there are steps that could be taken that will move the case to resolution. Here are some common examples: