Mediation is a facilitated negotiation: a neutral mediator helps the people in a dispute communicate, identify options, and consider whether they can reach an agreement. The mediator does not decide the dispute. The process commonly moves through preparation, an opening discussion, joint or private conversations, consideration of proposals, and a documented outcome—but exact steps depend on the dispute, provider, program rules, and jurisdiction.
1. Find out how your mediation is being run
Start with the notice or instructions from the court, mediator, or mediation provider. Check who scheduled or referred the matter, what documents or statements are requested, who is expected to attend, and whether participants may join in person, by video, or by telephone. Procedures are not uniform. For example, the Ninth Circuit says its program may begin with a settlement assessment conference; other programs may use different formats and steps.
The court-program examples in this guide illustrate common features, not rules that apply to every mediation. Follow the instructions for your own case and ask your lawyer or provider about anything unclear.
2. Prepare your goals, facts, and alternatives
Preparation is more than deciding on a number or outcome you want. Think through what matters to you, what facts and issues are likely to shape the discussion, and what you could do if the dispute does not settle. The Ninth Circuit recommends understanding relevant facts and law, identifying goals, considering the other party’s needs and possible areas of overlap, and weighing the consequences of continuing the case.
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- Clarify your interests: Identify the practical needs behind your position and which terms would address them.
- Assess your alternatives: Consider the likely time, costs, risks, and uncertainty of continued proceedings.
- Think about workable options: Consider possible accommodations for the other party’s interests as well as your own.
- Confirm attendance and authority: Find out who should participate and whether someone with authority to negotiate or approve a settlement needs to be present.
- Check document requirements: A written position statement is not universally required. The Second Circuit’s CAMP FAQ says one is encouraged but not required in that program; the Ninth Circuit says its mediator may request a statement later in its process. Follow the requirements that apply to your mediation.
For counsel and clients, the Tenth Circuit’s guidance also emphasizes discussing realistic goals, litigation risks and costs, the client’s underlying interests, and ways those interests might be met.
3. Start with the mediator’s explanation and opening discussion
At the session, the mediator may explain the process and invite participants to describe the dispute and what they hope to accomplish. The mediator’s role is to facilitate communication, clarify issues, ask questions, and help explore possible options—not to impose a result. The United States Court of Appeals for the Ninth Circuit puts it this way on its “Understanding the Mediation Process” page: “The mediator will not take sides, render decisions, or offer legal advice.”
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Depending on the program and dispute, participants may first talk together, move into separate conversations with the mediator, or use a combination. Some programs tailor the format to the case, including telephone or video participation. The mediator may also schedule follow-up sessions.
4. Work through joint conversations and private caucuses
In a joint discussion, participants can explain their views, ask questions, and respond to one another with the mediator’s help. A mediator may then meet separately with each side in a private caucus. These conversations can help participants speak candidly about concerns or possible terms and allow the mediator to explore options with each side.
The particular use of joint meetings and caucuses varies. Court-program materials from the Ninth, Sixth, and D.C. Circuits describe program-specific procedures; they do not establish one format for every mediation.
5. Evaluate proposals against what happens if there is no agreement
If proposals emerge, consider them in light of your alternatives—not just whether a proposed term seems better than your opening position. The Ninth Circuit identifies speed, cost, certainty, control, and flexibility as considerations in comparing a negotiated resolution with continued proceedings. The Tenth Circuit likewise advises considering litigation risks and costs. These are factors to weigh, not guaranteed benefits of mediation.
| Consideration | Question to ask |
|---|---|
| Time | How does the proposed resolution compare with the likely time required to continue the case? |
| Costs | What financial and other costs may follow from settling or proceeding? |
| Certainty | How does a defined agreement compare with the uncertainty of a later decision? |
| Control | Which outcome gives the parties more say over the terms? |
| Flexibility | Can an agreement address practical interests in ways a formal decision may not? |
Take time to understand proposed terms and consult your lawyer where appropriate. The mediator facilitates negotiation; the parties decide whether to agree.
Independent reader supportYour contribution helps us test, update, and keep practical guides available for everyone.6. Understand what agreement—or no agreement—means
If the parties reach an agreement
The parties negotiate the terms. If they agree, make sure the settlement is recorded and completed as required by the applicable process, and obtain legal advice where appropriate. In the Ninth Circuit program, the mediator helps ensure required paperwork is filed to close an appeal; that is a program-specific example, not a universal filing rule.
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The underlying proceeding generally continues under its applicable rules. The Ninth Circuit says an appeal proceeds if mediation does not settle it, and the D.C. Circuit similarly says an appeal continues toward decision when there is no agreement. Procedures in other courts and settings may differ.
7. Check the confidentiality rules that apply to your mediation
Confidentiality is often an important feature of mediation, but the protections and exceptions depend on the applicable law, program rules, and any agreements. The Ninth Circuit describes confidentiality as central to its process, while the Tenth and Sixth Circuit materials set out program-specific expectations. Do not assume that every communication in every kind of mediation is protected in the same way. Check your mediation agreement and program rules, or ask your lawyer or provider what may be disclosed and what exceptions apply.
What the process does—and does not—promise
Mediation creates an opportunity to negotiate with a facilitator; it does not guarantee settlement, a lower cost, or a faster result. The sources cited here do not establish a broadly applicable mediation success rate. The Second Circuit CAMP FAQ reports that 80% of counsel who watched its two-minute preparation video found it helpful; that is feedback about the video, not a mediation outcome statistic.
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