One-Page Overview of the Phases of Mediation

Prime Directive—The mediator must always maintain neutrality!

Phase 1

Preliminary Orientation of the Parties—The parties sign an agreement to mediate.

Mediator’s Introductory Statement—The mediator asks if the parties can agree to the rules.

Opening Statements by the Parties—The parties complain about the past. The mediator should allow each person an uninterrupted opening statement before asking questions. The mediator should listen to the parties about what they want and what options they think are possible. Eventually, the mediator may use restatement to ensure that each party heard the positive ideas and possible solutions offered by the other party. The point is not for the mediator to know all the details about the past. Instead, the mediator leads the way toward the future by moving on to the next Phase even before the parties do.

Phase 2

Ventilation by the Parties—The parties may get emotional about the past and the mediator says “I see” in order to validate the emotions without agreeing with them. It is usually productive for the parties to “let off steam.” But, the mediator should move to Phase 3 when the parties begin to repeat themselves or to go too far.

Phase 3

Issue and Problem Identification Between the Parties—The mediator asks each party, “What do you want?” The mediator may continue to ask this or a similar question until the parties give real answers. The mediator’s goal is for the parties to exchange information and to begin to focus on the present and the future instead of the past. Usually, the less the mediator says, the better—it is easier to maintain neutrality when asking only simple, non-threatening questions like “How do you respond?”

Phase 4

Negotiation and Option Generating by the Parties—The mediator asks each party, “How can we reach an agreement?” The mediator may continue to ask this or a similar question until the parties give real answers. The mediator’s goal is for the parties to generate their own ideas to resolve the dispute with the focus on the future. The parties will like their own ideas better than the mediator’s ideas. The mediator should not be a solution seller!

The Parties Reach an Impasse—The parties may regress to an earlier Phase of the mediation process and may be emotionally focused on the past or may feel that there is no possible solution to the dispute. The mediator should use impasse-breaking techniques to remind the parties to focus on the future. The mediator may continue to ask the parties “What do you want?” or “How can we reach an agreement?.” The mediator may ask each party to explain the negative impact of failing to settle the dispute now. The mediator may also call for a recess where each side of the dispute meets privately to confer with their associates or attorneys without the presence of the mediator. Or, the mediator may call for a caucus where the mediator meets privately with each of the parties.

Phase 5

Agreement Writing—The mediator should say “Let’s get these agreements down on paper” even before the parties have negotiated all the various details of a complete agreement. If the parties see the agreement becoming a reality on paper right before their eyes, it is less likely that the parties will regress or lose hope. The mediator should let the parties dictate the words of the written agreement with as little interference from the mediator as possible. The mediator does not want to bring up issues that may spoil the agreement or reopen old wounds. However the mediator may ask short, subtle questions to do reality testing such as: “Who?,” “What?,” “Where?,” “When?,” and sometimes “How?” or “How much?,” but almost never “Why?.” The purpose of reality testing is to make the agreement clearer and more realistic to the parties.

Closure—The mediator should thank the parties for their efforts and congratulate them for reaching an agreement. The mediator should remember that the parties may not feel wonderful about their compromises, but the mediator hopes that the parties will feel that the process of mediation was fair and worthwhile.

Note: This Overview reflects the individual style of the author and is not the only correct way to mediate.

Copyright © 1993 by Mark W. Batchelder, Attorney at Law  (817) 926-5555

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