After much wrangling and no solution, they summon the librarian who asks each party the reason behind his position. The man who wishes the window open explains that he wants fresh air. The man who wishes it closed explains that he wants to avoid a draft. Because mediators are trained to explore the interests underlying each party's position in a mediation, and because the process itself is conducive to that exploration, mediation is an ideal forum in which to utilize the negotiation philosophy advocated by Fisher and Ury. Many courts in the United States, both state and federal, have mediation programs.
Mediation typically arises in one of two contexts in U.S. litigation.
Typically, such courts maintain a panel of approved mediators who offer their services to litigants, at either the court's direction or the litigants' request. The second context in which mediation arises is private mediation. In these cases the parties to a dispute decide that mediation would be appropriate and select a mediator from among the many private providers who have gone into the business of offering these services. Mediation as a technique for resolving disputes first began in the area of family law, probably because the nature of the emotions involved often led to serious problems with positional bargaining and because the parties, like it or not, were often forced to have a continuing relationship because of children. Mediation in family law disputes was quickly recognized as a valuable tool, and courts and litigants soon realized that using mediation was not limited to family disputes but could be extended to other civil disputes as well.