Mediation is a flexible, problem-solving process in which a neutral third party, the mediator, helps disputants reach their own voluntary agreement about how to settle a legal dispute. It offers disputants more control than going to court because they decide what the final settlement will look like and can avoid a judge or jury imposing an unpalatable outcome on them.
It is often less costly and more time efficient than a traditional lawsuit. It may also preserve delicate relationships that could be destroyed by litigation. It can also provide the opportunity to resolve underlying issues that contribute to legal disputes. It can also provide parties with an opportunity to close a chapter in their lives and move forward.
In mediation each person is encouraged to tell their story in a safe environment. This allows disputants to get past their anger and hostility and move toward resolution of the legal dispute. Mediation can also help disputants find creative solutions to their dispute that they might not have come up with in a court room.
A mediator is a neutral 3rd party who is specially trained in helping people with difficult conversations. Mediators are not attorneys and do not provide legal advice. They can offer both disputants and their lawyers support, structure and guidance in the negotiation process.
The mediation process starts with an introduction by the mediator who explains their role in the Mediation. This is often followed by an opportunity for you to discuss your concerns with the mediator and each other. If you are represented by an attorney, the lawyer will usually be present for this part of the discussion. During the Mediation, the mediator will meet with each of you in private (a meeting called caucus).
The mediator will listen attentively, provide appropriate verbal and non-verbal feedback, affirm, attend to different conflict frames and punctuations, ask questions, identify power dynamics, provide space for discussion of emotional issues, offer options and help disputants narrow their choices to workable solutions. Mediation is an evaluative process in that the mediator will analyze the issues, examine relevant norms and practice patterns (“reality-testing”) and refrain from providing prescriptive advice to the Parties (“You should do this”).
As with any mediation, the outcome of a Mediation depends on the willingness of the disputants to work cooperatively towards a resolution. Most disputes will not be resolved in Mediation unless the disputants are committed to reaching a resolution. If the dispute is not settled through Mediation, disputants may continue with their lawsuit or seek other forms of alternative dispute resolution.
Before deciding to participate in a Mediation, it is important for disputants to discuss the pros and cons of this method of dispute resolution with their attorney. It is also a good idea for disputants to do some research on the Mediator who will be chosen. There are many factors to consider including cost, the percentage of cases successfully settled, how the Mediator will be paid, their experience and training and what kind of background they have in working with conflict situations.