Mediation is a facilitated negotiation: a neutral mediator helps the people in a dispute communicate, clarify what matters, and explore possible agreements. The mediator does not decide the dispute. The steps below describe common features of court mediation, not a universal procedure; requirements depend on the provider, the governing rules, and the jurisdiction.
1. Find out how your mediation is organized
Start with the referral notice, scheduling email, or provider instructions. Check what the process requires before the session rather than assuming every mediation follows the same format.
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- Who referred or scheduled the mediation, and which rules or agreement govern it?
- What documents or written statement, if any, must you provide, and by when?
- Who is expected to attend? Does anyone need authority to approve a settlement?
- Will the session be in person, by video, or by telephone?
Procedures differ even among court programs. For example, the Ninth Circuit says its process may begin with a settlement assessment conference; that is not a required first step in all mediations. The Ninth Circuit’s process overview and the Second Circuit CAMP FAQ describe their respective programs.
2. Prepare your goals, facts, and alternatives
Before the session, review the key facts and issues and decide what you want to accomplish. Consider both the outcome you hope for and the interests behind it: for example, resolving uncertainty, preserving a relationship, or finding a practical arrangement. The Ninth Circuit recommends understanding relevant law and facts, identifying goals, considering the other side’s needs and possible areas of overlap, and assessing what may happen if the case continues.
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Discuss the decision with your lawyer
If you have counsel, talk through realistic goals, litigation risks, the likely costs of continuing, and the interests of everyone involved. The Tenth Circuit’s counsel guidance emphasizes considering how those interests might be met and whether accommodations could make an agreement workable.
Check whether a written statement is required
Do not assume you must prepare a position statement. The Second Circuit CAMP FAQ says a statement is encouraged but not required in that program; the Ninth Circuit says its mediator may request one later. Follow the instructions for your own mediation.
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3. Attend with the right people and authority
Confirm who needs to participate and whether someone attending can make or approve settlement decisions. If an insurer, organization, or other decision-maker is involved, check the applicable instructions about attendance or availability. A session can lose momentum if the people present cannot evaluate or authorize a proposed resolution.
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The mediator typically helps participants understand how the discussion will work and what issues need attention. The exact opening varies. In the Ninth Circuit program, the mediator’s role is stated plainly: “The mediator will not take sides, render decisions, or offer legal advice.” That is guidance for that program; generally, mediation is not a hearing in which the mediator rules on who is right.
A mediator may ask questions, help clarify points of disagreement, and support communication. The parties—not the mediator—decide whether to settle and what terms to accept.
5. Discuss the dispute together or in separate meetings
Some sessions begin with everyone in the same conversation. The mediator may invite each side to explain its perspective, identify disputed issues, and describe what it needs from a resolution. Other sessions may use private meetings, often called caucuses, in which the mediator speaks with participants separately. A process can move between joint and private conversations, and may include follow-up sessions.
The format depends on the dispute and program. Federal appellate court examples include in-person, video, and telephone sessions; they are possibilities, not a guarantee for every mediation. Ask the provider or mediator what format applies to your session.
6. Evaluate proposals against what happens if you do not settle
If proposals emerge, compare them with the realistic alternatives to agreement—not just with your ideal result. Consider the likely time and expense of continuing, uncertainty about the outcome, and how much control or flexibility a negotiated agreement could provide. These are factors to weigh, not promised benefits: mediation does not guarantee a faster, cheaper, or successful resolution.
Think about whether proposed terms address the practical interests you identified before the session. If a proposal is unclear, ask questions and take the time allowed by the process to understand its consequences. Where appropriate, get legal advice before agreeing.
7. Know what happens if you reach an agreement
A settlement is negotiated by the parties. If you agree, make sure the terms are recorded and completed as required by the governing process. In the Ninth Circuit program, the mediator helps ensure required paperwork is filed to close an appeal. Other proceedings may have different documentation, approval, or filing requirements, so follow the applicable instructions and consult a lawyer when needed.
8. Know what happens if you do not settle
Not reaching agreement does not by itself mean the process failed. The next step depends on the case and rules. In the cited Ninth and D.C. Circuit appellate programs, an appeal that does not settle proceeds toward a decision. Other mediation settings may have different next steps; check the referral notice or ask your lawyer or provider.
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How confidentiality works
Confidentiality is governed by the applicable law, program rules, and any mediation agreement. Court programs describe confidentiality as an important feature, but that does not establish a blanket guarantee for every type of mediation or every communication. Before sharing sensitive information, review the governing terms or ask your lawyer or provider what may be disclosed and whether exceptions apply.
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