When you agree to engage in a mediation, you may wonder about the mediator's role in helping you with your dispute. The mediator listens to both sides of the story, asks questions, tells the parties about the weaknesses in their positions, proposes solutions, and helps bridge the gap between positions.
Listening and Asking Questions
A mediator often starts a mediation session by listening and asking questions. He or she may ask people on each side of the dispute to give brief statements regarding their positions. If the parties have prepared briefs that they sent to the mediator in advance of the mediation session, then the mediator may have questions already prepared. If not, then the mediator may come up with some questions on the spot. The questions are targeted to understand the parties' positions and also highlight possible strengths or weaknesses.
Exposing the Weaknesses in Positions
An important part of mediation is exploring the weaknesses in the parties' positions on the dispute. This can help people agree on a realistic settlement or resolution. The mediator may talk to the parties candidly about these weaknesses and explain why they would be barriers to successfully pursuing the dispute in a lawsuit or arbitration. When a party believes strongly in a position, he or she may not have thought about the weaknesses in their case, so discussing with the mediator helps.
After the mediator and the parties understand the facts and the weaknesses in their positions, it is time to talk about resolution. The mediator may propose different kinds of creative solutions depending on the dispute. For example, many legal disputes end in settlement, when one party pays the other money in exchange for a release of claims.
Once the mediator begins proposing solutions, he or she works to bring the parties closer together on resolution. A settlement amount suggested by the mediator may be rejected by both parties, but it opens the door to the parties exchanging settlement proposals. One party might suggest a higher number, and the other a lower number. Then the mediator helps them negotiate to a number that is somewhere in the middle. If the parties agree on a settlement, then the mediator can help them prepare a short agreement memorializing the settlement (often to be formalized later in a longer agreement).