Mediation is a confidential, non-binding process in which the parties attempt to settle their legal dispute through active participation of a third party (mediator). The trained mediator facilitates communication and works to find points of agreement between disputants to reach a mutually acceptable and fair resolution of all or part of their dispute. Mediation differs from arbitration in which the third party (arbitrator) acts much like a judge in an out-of-court less formal setting but does not actively participate in discussions with the parties. Mediation can be initiated at any time by agreement of the parties or is sometimes required by the terms of parties’ contract or ordered by the court.

Mediation can take many forms and be defined in different ways, but it is essentially a process whereby a neutral third party assists parties in a dispute to voluntarily reach their own mutually acceptable agreement. Unlike a judge or an arbitrator, the mediator does not take sides or make decisions. The parties are not compelled to reach an agreement and any party is free to leave the mediation at any time. The mediator’s role is to help the disputants evaluate their goals and options and find their own satisfactory solution. This is accomplished using patience, persuasion, examination of the facts and any applicable law, and facilitation of dialogue between the parties to reach a settlement.

What is the Goal of Mediation?

The goal of mediation is for the parties to work out a solution or compromise they can live with and trust. It focuses on problem solving, not dredging up the past in the search of truth or imposing strict legal rules. The mediator is there to help the parties explore their choices and ultimately control the outcome and results, rather than having a Judge decide them.

What are the Advantages of Mediation?

  • The parties work cooperatively to find a solution, instead of having the judge decide for the disputants.
  • During the court hearing, the parties often have five or ten minutes to present their case, but in mediation, the parties have if they need to talk about the situation.
  • Mediation is confidential and private, so what the parties say in mediation cannot be used against them later in court.
  • The parties can talk about issues that are not directly related to the law but are very important to the parties and how they feel about the dispute.
  • The parties can reach an agreement that goes beyond the money issues and can include, for example, giving one side a chance to fix a problem, or apologize.
  • When a judge decides, one or both sides may not be satisfied with the result. In mediation, however, both sides agree to the outcome as a mutual compromise. 

What is the Role of the Mediator?

The mediator acts as a neutral third party and facilitates rather than directs the process. A mediator “facilitates” by managing the interaction between the parties and opening the lines of communication and negotiation. Mediation is also evaluative in that the mediator analyzes the issues and relevant norms, while refraining from providing advice to the parties.

Each mediator has a unique style, and the most effective mediators alter their approach to fit the unique needs and personalities of a given dispute.Facilitative mediators rely on people skills and persuasion to guide the parties toward a realm of agreement.Evaluative mediators use their experience and subject matter expertise to foresee possible outcomes and advise the parties accordingly. Each style can be used effectively, and many mediators utilize a combination of both styles as the needs of the conflict dictate.

What is the Process of Mediation?

Mediation is a flexible, multi-stage process designed to get results and, as such, can be used effectively at any time during a dispute. It involves a series of joint sessions and private caucuses coordinated by the mediator.

The participants will then be separated for private caucuses with the mediator. The private caucuses provide each party an opportunity to meet privately with the mediator to discuss the strengths and weaknesses of his or her position and consider new ideas for resolution and settlement. The mediator may caucus with each side just once, or several times, as needed. After the caucuses, the mediator may bring the parties back together to negotiate directly.

Ultimately, the mediation will conclude when a settlement or impasse is reached. Impasse is declared when one or more parties or the mediator determines that continued negotiations would be ineffective at that time. If a settlement is reached, its terms should be put in writing in a binding agreement and signed by the parties.

Mediator’s Proposal

To bridge the gap between the parties, the mediator may suggest a settlement proposal. Unlike a proposal made by one of the parties, the mediator’s proposal is not usually rejected outright. The parties will typically caucus regarding the proposal, where they can respond to the mediator and privately accept or reject the proposal. If both parties accept, there is a settlement. If not, the parties are simply informed that no agreement has been reached so that they can retain their original bargaining positions.

Is Mediation Confidential?

State laws provide that all communications, negotiations, or settlement discussions by and between participants during a mediation or a mediation consultation must remain confidential. Confidentiality applies to anything that was said or any admission made for the purpose of, and during, a mediation or mediation consultation. Similarly, any writing “that is prepared for the purpose of, in the course of, or pursuant to a mediation or mediation consultation” is protected. There is an exemption for a written settlement agreement signed by the parties’ following mediation, which may be introduced and admitted into evidence if one or both sides seek to enforce it in court.

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