The University of Montana School of Law

What is Mediation?

The Mediation Process

Mediation is a way of resolving disputes informally or out-of-court. In a mediation, a neutral third party—here the Clinic—brings the individuals or parties together and helps them reach a mutually agreeable solution.

The mediator’s job involves facilitating communication, asking questions, validating and normalizing parties' points of view, identifying interests underlying parties’ positions, and assisting them in developing and analyzing options for resolution. Since mediators have different styles and techniques, the process outlined below is a general framework of our process; note that the Clinic invariably tailors it to meet specific needs.

Introduction: After convening the parties, the mediator begins with introductions about themselves and the meeting, emphasizing that mediation is confidential, and establishing ground rules for discussion.

Opening Statements: Thereafter, the mediator asks each party to make an opening statement. This is the opportunity for parties to tell their stories and/or frame the issues to be resolved. Usually the party requesting the mediation will speak first. Parties are expected to listen to each other carefully and respectfully.  

Discussion: After all the parties have spoken, the mediator facilitates communication between or among them to identify the interests involved and priority for addressing them. The mediator may also begin to formulate options and alternatives available.

Caucuses: Caucuses are times in which the mediator meets with one party only. Caucuses may be used frequently or not at all. Either party or the mediator can request a caucus, which provides an opportunity for a party to “think out loud” or explain their position to the mediator without the other party present. The mediator might also want to explore possible resolutions with each party individually before addressing them with all parties, enabling the parties to individually assess the merits of their claims. After caucuses have been conducted, the parties usually reconvene and continue their discussion.

Closing: If the dispute is resolved, the agreement is put into writing and signed by the parties. If no resolution is reached, the parties decide if further mediation would be beneficial.

To learn more about mediation, visit http://www.abanet.org/dispute/flash/abadr_gettingtoknowmediation.html.