Mediation is a dispute resolution process in which a neutral third party, called a mediator, assists disputing parties in reaching their own mutually acceptable settlement. The mediation process is flexible, less time consuming than moving a case through standard legal channels and more cost effective than traditional litigation. Mediation is usually conducted in private settings allowing the parties and their attorneys (if represented) to discuss matters in confidence.
When a case goes to mediation it is because the parties want to explore alternatives to traditional legal channels such as litigation or arbitration to resolve the matter. The parties are generally ready to negotiate and are willing to compromise and settle the matter. Mediation is particularly useful when it comes to family law cases, business disputes or other civil disputes where the parties wish to preserve their relationship.
A mediator is a neutral facilitator who works with disputing parties to help them devise their own, mutually acceptable solutions to their disputes. The mediator guides the discussion by asking questions, reframing issues and helping parties to understand each other. The mediator does not take sides, pass down decisions or offer legal advice. In addition to being a neutral facilitator, the mediator has extensive training in working with difficult situations and is skilled at assisting parties in finding creative, outside-the-box solutions.
In the United States, the laws governing mediation vary by state. Some states require certification of mediators and have clear expectations of ethical standards and confidentiality. Some courts have special procedures for mediation cases, and others exempt mediators from testifying in court cases they have worked on as part of their practice.
During the mediation process, each party will typically be given an opportunity to express their position and interests in a joint session with the mediator and all other participants. This is followed by separate caucuses between the mediator and each individual party or their counsel to allow them to explain their positions and mediation goals in detail and privately. The mediator will often ask the advocates questions which may serve to create doubt in an advocate’s mind about the validity of a particular position or mediation goal.
The result of a mediation is often a written agreement which the mediator will execute and sign on behalf of the parties. The agreement will list all resolved issues and any unresolved issues that will be addressed at trial. The agreement will also typically be signed by all the participants in the mediation and their attorneys (if represented).
Before participating in mediation it is recommended that the parties prepare their cases by reviewing all documents related to the case, and identifying key witnesses. The participants should also consider what outcomes they are seeking and how they relate to their broader business interests. It is important that the participants come to the mediation prepared, and arrive on time. If necessary, participants can prepare for a mediation through the assistance of their attorneys or by using free or reduced-fee services available in their local courthouse or from a community dispute resolution center. what is mediation