I’m often asked what to tell someone going into mediation for the first time, so for this July 4th, I thought I’d share four pieces of advice.

Many people have no real understanding, nor experience with mediation. For example, a former student surveyed people in grocery store lines by asking them if they were familiar with mediation. More than one responded with something like “it’s when you close your eyes and try to clear your mind.” Needless to say, mediation is not meditation.

I try to provide five simple and direct directions:

First: Mediation is not about proving you’re right and the other party is wrong. It is important to bring any supporting documents, especially since the mediator may ask you to share documents with each other. But mediation is not a court. There is not someone there who will listen to arguments and render a decision.

Second: While mediation is not about the past, it is about the future. People usually come to mediation with their mind made up with the one and only solution they will accept. Instead, come to mediation with some ideas for other possible solutions.

Third: Listen carefully to what the mediator says about the process, particularly about confidentiality.

Fourth: Listen carefully to the other party and don’t focus on their demands and arguments. Try to listen for what might be motivating their position.

Remember, mediation must be voluntary. No one can force you to accept an agreement. If you feel a solution is unacceptable, you have the right to tell the mediator to address the situation or stop the process.

I’m often asked how often mediations result in an agreement.

Unfortunately, this isn’t a simple question, as It depends on whether you mean an agreement achieved during the mediation or due to the mediator’s influence on the parties involved.

Some mediations end with an agreement during the session. Some conclude without, but the parties later reach one informally. And yes, some never reach an agreement at all, but we don’t consider those necessarily a failure because the parties were given the opportunity to make their issues and feelings clear to one another.

If we limit the question to how many mediations reach an agreement at the end of a session, the answer accepted by most mediators is about 70%. The 2022 report of the Southern District Court of New York reported that of 1,550 mediations, 65% settled with variation by the type of dispute, with Consumer Credit having the highest settlement rate and Tort cases (harm caused by wrongful act or negligence) the lowest.

Mediation affords parties’ “self-determination,” that is, they have the right and power to decide or not. Since the power to decide rests with the parties, the mediator has no responsibility for their decision. If mediators begin to mark their success by the number of wins (settlements) they run the danger of unduly forcing the parties to settle. Therefore, it is considered unethical for mediators to claim a high success rate in their advertising.

To learn more, consult this author’s latest book, Negotiation and Mediation: A Communication Approach, available now.