The mediation process is a collaborative one and involves disputants discussing their respective positions with the mediator. Unlike the courtroom, all discussions during the mediation are confidential and participants must be willing to communicate openly and honestly. The mediator is not a decision maker and a resolution cannot be imposed on disputants. Mediation provides a forum for disputants to settle disputes themselves in a more creative, cost effective and constructive way than litigation.
The first step of the mediation is often a pre-mediation telephone conference between the parties and their attorneys. These conversations provide an opportunity for each party to explain and enlarge upon their positions, mediation goals and interests. This helps the mediator understand what is at stake and to determine whether a settlement is feasible.
During the mediation session, each disputant will be given the opportunity to describe their side of the story in a joint session and the mediator may entertain general ideas about resolution. The mediator will then hold private caucuses with each party or their counsel to discuss their positions in confidence and to fully consider possible solutions to the dispute.
If an impasse arises the mediator will sometimes bring the parties back together to negotiate directly but this is rare. In the event that the mediator feels that continuing negotiations will not be productive, he or she will inform the parties so they can decide how best to proceed. In the course of a mediation, disputants are encouraged to listen attentively, keep confidences, be empathetic and suspend their prejudices and preconceived judgments in order to focus on solving the dispute.