On the day of the mediation, the mediator will usually meet with both sides together and make an opening statement that outlines the process that will be used. Generally the mediator describes the role s/he will play, the confidentiality applicable to the process, how the process is expected to unfold and some additional thoughts that the parties may consider as they begin.

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:

• One or the other side is not prepared to make a commitment on the terms that are needed for settlement, and needs time to think the situation over in light of new understanding obtained at the mediation.
• Information not available during the mediation is needed before one or both sides can conclude a settlement, because that information will affect one or both sides’ positions.
• The parties are exhausted (when the case has gone into the evening hours) and starting fresh another day will help.
• Someone whose agreement to a settlement is important is not present at the mediation or unexpectedly objects to the terms being discussed.
• One or both sides arrived at the mediation believing that the range of settlement would be one thing, only to discover at the mediation that their expectations were not reasonable, and further discussions are needed to decide what to do.
• Far more often than not, even when a case does not settle at mediation, a resolution is possible if the parties and the mediator continue the effort to achieve one.

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