How to Mediate a Dispute

Four Parts:Finding a MediatorPreparing for MediationAttending MediationAvoiding Common Mistakes in Mediation

Mediation is a form of “assisted negotiation.” In mediation, you and the other parties to a dispute meet with a neutral third party, who is the “mediator.” He or she will help each side listen to the other. The mediator is not a judge, and the mediator will not decide who is right and who is wrong. Instead, the mediator will help you come to a solution everyone can live with.[1]

Part 1
Finding a Mediator

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    Check with your courthouse. Some courthouses offer mediation programs.[2] In fact, some courts require parties to attempt to mediate the dispute before the lawsuit can continue to proceed. If you are interested in mediation, then check with the court clerk to see if your court offers a mediation program.
    • Your courthouse also might keep a list of approved mediators.[3] You should ask if the clerk has a list you could look at.
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    Search for mediators online. You can do a general search for “mediator” and your city or county. There are also different online directories you can use to find a potential mediator.
    • The website has a directory you can search. Type in your location and the nature of your dispute.[4]
    • You can then review the list of potential mediators in your area. Click on a name to review a mediator’s education, mediation experience, and hourly fee.
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    Contact a private mediation center. There are many private mediation organizations which you can contact to find a mediator. Generally, you would only get mediators from these organizations if you have a complicated business dispute worth a lot of money. You could contact the following:[5]
    • JAMS
    • American Arbitration Association
    • Judicate
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    Check with your bar association. Some local or state bar associations also offer referrals to mediators. A bar association is an organization made up of lawyers. Since many lawyers are also mediators, you can get a referral through these organizations.
    • You can find contact information for your nearest bar association by visiting the American Bar Association website.[6]

Part 2
Preparing for Mediation

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    Hire the mediator. You and the other side should pick the mediator jointly, so that no one thinks the mediator will be biased. You can both review the mediator’s credentials by asking for a resume, and each of you can talk to the mediator before agreeing to hire him or her.
    • You will also split the cost of mediation. Generally, mediators charge $70-400 an hour, depending on the complexity of the dispute.[7]
    • Mediators will determine when they get paid. However, many require payment after each mediation session.[8]
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    Talk with the mediator ahead of mediation. The mediator might call you before the mediation in order to get some background information on the dispute. The mediator will also call the other side. The purpose of the call is to figure out areas of disagreement as well as areas of agreement.[9] The mediator might also give you paperwork to fill out.[10]
    • You don’t gain anything by shading the truth, since the mediator is not a judge and will not be on anyone’s “side” during mediation.
    • Be as honest and as objective as you can. Don’t speculate about what the other side wants unless the mediator asks you to.
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    Think about what you want. Before you can negotiate effectively, you should think about what you hope to get out of the mediation. Ideally, you will resolve the dispute in some way. You should think about your priorities.
    • For example, in a divorce mediation, you will likely discuss the division of property and debts, child custody, child support, and possible alimony. You should have some understanding of what you would like to get. You should also establish priorities. For example, getting full custody of your children may be more important than alimony.
    • If you’ve already filed a lawsuit, then review your complaint or petition and see what you have asked for.
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    Analyze your best alternative to settlement. You should give some thought about what other options you have besides reaching a settlement agreement. For example, if you are involved in a personal injury lawsuit, then your next best alternative might be to go to trial and defend yourself. This is your BATNA, “Best Alternative To a Negotiated Agreement.”[11]
    • Your alternative may or may not be appealing. For example, in a divorce, your BATNA could be to go to court and have the judge decide custody. However, this can be emotionally draining on your children, so you might want to avoid it.
    • Alternately, your BATNA might be fairly attractive. For example, if you are the defendant in a lawsuit, then you might be confident that your evidence is strong. If so, your BATNA could be to go to trial and win the lawsuit.
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    Identify your bottom line. Mediation is a voluntary process, and you can walk away at any point if you think that the mediation has stalled. You should identify the absolute minimum that you are willing to settle for. This is called your “walkaway” point.[12] If the other side can’t meet this minimum, you leave mediation.
    • The attractiveness of your BATNA will in large part determine your walkaway point. If your BATNA is strong, then you could come up with a favorable walkaway point. For example, if you have a good defense to your lawsuit, then your walkaway point might only be 25% of what the plaintiff is asked for.
    • Take a fresh look at your dispute and any evidence that you have available. Try to analyze the strength of your case. If going to trial is your BATNA, but your evidence is weak, then you might be willing to give up a lot during mediation. For example, you might settle for an amount close to what the person suing you has asked for.

Part 3
Attending Mediation

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    Listen to the mediator’s opening statement. Each mediation might be a little different, but often the mediator will begin by introducing everyone and explaining the rules and goals of mediation.[13]
    • The mediator will also encourage each side to work with each other so that the mediation can be successful.
    • The mediator might also have you sign a confidentiality agreement and probably will also explain that they will not divulge any statement either side made in mediation.[14]
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    Make an opening statement. Each party in the mediation gets to deliver an opening statement. The purpose is to explain in your own words the substance of the dispute and how it has affected you. You must listen quietly to the other side’s opening statement. Don’t interrupt.[15]
    • If you were injured in a car accident, you could say: “As I see it, this dispute involves who is responsible for the crash. I was driving through a green light when Mr. Jones sideswiped me. Immediately, I couldn’t feel my legs, and emergency services had to pry me out of the car. At the hospital, I had two surgeries to try and set the bones in my legs, which were broken into dozens of pieces. Since then, I’ve had three months of rehab and still can’t put full pressure on my legs. I need compensation to pay for my medical bills and lost work, and to compensate by pain and suffering. If we could agree on a realistic amount of compensation, I would feel comfortable dropping the lawsuit.”
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    Talk with each other. The mediator will also try to prompt each side to begin to talk with each other. At this point, you can begin to identify what issues need to be addressed by the mediation.[16]
    • Try to practice an active listening style. Sit comfortably so that you face the other person. Don’t cross your arms or angle your body away. Make eye contact as they speak to you and nod your head occasionally to show that you hear them.
    • Remember to use “I” statements instead of “you” statements.[17] The other side is less likely to get defensive when you speak about how you feel.
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    Identify what the other side wants. One benefit of mediation is that you can actually have a conversation. If you are in a lawsuit, you probably assume that you already know what the other side wants: to win the lawsuit. However, the other side could be open to compromise. You should try to figure out what issue is most important to the other side.[18]
    • For example, someone might be willing to pay money compensation but wants to avoid admitting that they were at fault. You can agree to a monetary settlement without requiring the other person to admit that what they did was wrong.
    • By contrast, someone else might really want an apology, with monetary compensation a secondary consideration. You might be pleasantly surprised that the other side isn’t too focused on money.
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    Caucus individually with the mediator. As the mediation continues, the mediator might feel that it would help to meet with each side individually. This is called “caucusing.” The mediator will meet with each side in their own room and then shuttle back and forth between rooms.
    • During the caucus, you can speak more openly with the mediator and discuss the strengths and weaknesses of your position.[19] You don’t have to worry about the other side finding out what you think or fear; the mediator will keep your confidences.
    • The mediator might also float creative solutions for you to consider privately. You can discuss the strengths and negatives. If you reject a solution, then the mediator won’t mention it to the other side.
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    Write down your agreement. If you do reach agreement, then the mediator may write down the main terms of your agreement on paper and ask each side to sign. You should then take the agreement to a lawyer and ask them to review it.[20]
    • You might not reach agreement after one mediation session. In this situation, the mediator will review what progress has been made to that point and possibly recommend additional mediation sessions.

Part 4
Avoiding Common Mistakes in Mediation

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    Don’t insult the other side. Often, you are in a legal dispute because the other side is being unreasonable or underhanded. However, you should avoid using insulting language.[21] Don’t call someone an “idiot” or “scumbag.” If you are involved in a dispute with a landlord, don’t say, “You are a slumlord.”
    • Insulting the other side is never productive in mediation. Remember that you agreed to mediate because you honestly want to reach a resolution. Putting someone on the defensive will impede reaching any resolution.
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    Think before speaking. Mediation can become emotional. You might hear the other side say something that upsets you. Your instinct might be to lash out and say something snarky or rude in return. You should try, as best as possible, to avoid doing so.[22]
    • If someone has just said something incredibly hurtful, it is better to ask the mediator for a “time out” so that you can cool down. When the anger has passed, you can return to mediation.
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    Decline to assign motivations to someone’s actions. You don’t know what has motivated someone’s actions. Accordingly, you shouldn’t state that you do. Often, you will be tempted to assign a motivation that makes the person look bad.[23]
    • Saying “You tried to fire me because you don’t like female supervisors” is a statement where you pretend to know what is motivating someone. It also allows you to claim the other person is sexist, which may not be true.
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    Avoid “always” and “never” statements. You should not use these words. They are unproductive because the other side will come up with counterexamples to show that something isn’t always or never true.[24] In this situation, the mediation becomes an argument about side issues, which is not helpful.
    • If you do accidentally make an “always” or “never” statement, then apologize and try to move on. Don’t get hung up in an argument.


  • You might not want to participate in mediation if you are physically afraid of the other person. For example, if your spouse has been abusive, then mediation might not be right. You need to feel safe in mediation, and a history of violence or threatened violence undermines that safety.[25] If a judge is trying to force you into a mediation program, tell him or her about the history of violence.

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Categories: Civil Litigation