Mediation is a structured settlement negotiation process which attempts to resolve issues outside of the courtroom with a mediator. Mediation, unlike arbitration, is not binding on the parties. A mediator does not make a decision for or against any party, but simply attempts to get the parties to agree. If the parties reach an agreement during the mediation session, a settlement agreement can be drawn up, which the parties can sign, effectively concluding the litigation. Although mediation is non-binding, the Courts almost always send cases to mediation since it tends to settle about 90% of all cases.

The mediation process takes place in the mediator's office, usually with multiple conference rooms. All parties and their attorneys are required to be present. The mediator does not choose sides. The mediator gets points for settling the case. Everything said is absolutely confidential, and the mediator cannot be called as a witness to the case. Each side must have someone present with authority to settle the case.

The process starts in one room with a face-to-face meeting of all the parties, all the lawyers, and the mediator. Each side gives a statement, usually by attorney, but the parties are welcome to speak as well. Generally the plaintiff speaks first. This is the lawyer's only chance to talk directly with the other client. Therefore it is the attorneys' time to evaluate the opposing party as a witness, and the only chance to talk to the opposing party directly. Afterwards, the sides usually divide into separate rooms, and the mediator spends the rest of the time going from room to room attempting to “reason” with each and reach a mutually accepted settlement.

This generally takes half a day or a full day. Parties usually stay in the conference room and get tired of working on reaching an agreement, and just want it to go away. The mediator brings in a sandwich for everyone, and people are expected to work during lunch. Everyone tends to get tired and hungry by the end of the day.

The mediator employs several techniques to try to reach a settlement. First, he lets everyone have his or her say to get it out of their system. Then he hammers you with the other side's best arguments, and likewise hammers them with your best arguments. The mediator will try to create doubt in your minds, and generally try to put together something that works for everyone. He relies on the fact that everyone will get tired and want to settle and get the whole thing over with. He will also reiterate how much trying the case will cost.

There are several techniques to utilize to make the day go the way you would like it to. First, you need to present a good argument during opening. Each time the mediator comes into your room, you will want to have something new to show him, and therefore a new argument. You might want to make demands that you will be willing to dispense of later. Finally, it is a good idea to bring a snack for later in the day to keep your energy levels up.

The mediator gets paid for his or her work by check at the beginning of the session. The amount varies somewhat, but it is generally several hundred dollars a day per side.