Mediation is less formal than court and the process is centered around the parties.
Your mediator should tell you what to expect at every stage of the process. In addition, here are some tips that might be useful to consider.
For attorneys, understanding how mediation works and what to expect from the mediator is important to ensure the mediation is productive, and that both you and your client are prepared.
Choosing a Mediator
If you are in a situation where you can select your mediator, either from a roster or privately, you may wish to interview the mediator and ask questions like those shown below. Some of the answers to these questions may be found under the mediator’s profile in the Statewide Mediator Directory.
- Tell me about your background and areas of expertise.
- Do you have experience mediating a case like mine?
- How many sessions does it take? How long are the sessions?
- What do you charge? Are there any additional fees?
- What kind of training have you had, and when was it?
- What kind, and how much mediation experience do you have? How many cases have you mediated?
- Are you on any court rosters?
- What is your approach to mediation or mediation philosophy?
- Do you belong to any professional organizations?
- Can you provide references? (Some may not be able to because of the confidential nature of the mediation process.)
- Can you mediate online?
- How does the process end? Who drafts the agreement?
Preparing for Mediation
Your mediator might ask you to prepare a statement that summarizes the case from your perspective. Even if they don’t request this, there are other things you may want to do to prepare for your session.
What if you don’t settle the case in mediation? Before attending mediation, it is helpful to understand what your options are if mediation doesn’t result in a settlement.
What is important for you to share at your mediation? Unlike in court, where parties have a limited opportunity to speak, mediation gives you an opportunity to talk about what really matters to you. It may be useful to know ahead of time what you’d like to talk about (or to hear another person at the mediation talk about):
Your/their experience
How you/they have been impacted
How you/they are feeling
What do you want from the mediation? In most cases, a court can only order money damages if they rule in favor of a plaintiff. In mediation, you may ask for other things that are often not available in court, like:
Explanation
Apology
Items returned
Better relationship
Remember that the mediator will not pick sides and will be asking all parties about what they have experienced and what they want to get out of mediation. Be prepared to listen to what the other party has to say.
Getting Legal Advice
You may also bring a lawyer to mediation. Speaking with a lawyer before or between mediation sessions is recommended. The NYS Unified Court System’s Court Help website may be a useful resource in how to find a lawyer or how to get legal information.
If you cannot afford an attorney, you may want to visit the following website: https://www.LawHelpNY.org. This website lists legal services organizations. Many offer legal advice and services for free or low cost to those who qualify.
Please note that court employees cannot give you legal advice. Court employees cannot decide if mediation is right for you. Court employees cannot tell you which individual mediator you should choose. See above for tips on Choosing a Mediator.
Mediation Participants
Who needs to be at the mediation? Mediation works best when the right people are present. This usually includes:
Parties to the case – anyone who has been named in the court case. Parties and/or their attorneys should always be present in mediation.
Attorneys – parties’ legal representatives. It is up to each party and their attorney to decide whether the attorney will attend. No other party, or the mediator, can restrict their attendance.
Other stakeholders – people who are not named in the case, but who are involved in the subject matter of the case or who might be affected by whatever is decided. All parties and the mediator must agree on their attendance.
Support people – people whose main role is to be of support to the parties. All parties and the mediator must agree on their attendance.
Interpreters – people whose sole function is to aid people with different primary languages to communicate in mediation.
- If you need language assistance, the court will help provide an interpreter if (1) your case has already been filed in court; and (2) the court has referred your case to mediation. Contact the local court clerk or the local ADR coordinator for further assistance.
In most cases, it is not appropriate for those who would only serve as witnesses in a trial to attend the mediation.
During Mediation
The mediator should explain to you that mediation is confidential. This typically means that the mediator may not disclose to anyone anything that was said in mediation, and that anything shared in mediation is not admissible in court as evidence. The mediator should also explain any exceptions to confidentiality, which typically include reports of harm to a child or threats of future harm to another person. Be sure to ask your mediator or your attorney for details about mediation confidentiality.
After the Mediation
In our effort to ensure the highest quality services for our court users, we request that everyone one who participates in a mediation complete a Post-Mediation Survey. The survey takes less than 3 minutes to complete, and your input is important. It helps to know what went well and what can be improved upon.
If you have concerns about the conduct of your mediator, please let your ADR Coordinator know. Learn more about how to submit a complaint against a mediator.