What Is Mediation?

Mediation is an alternative dispute resolution (ADR) process whereby the parties are assisted by a trained and skilled third party. The mediator facilitates confidential communication, reconciliation and negotiation between the parties to reach a voluntary and mutually agreeable resolution.

How Is Mediation Different From Legal Litigation?

In legal litigation, the parties retain attorneys whose focusis to prepare a case which will result in the best decision for their client by a judge. Often, litigation includes an adversarial approach demeaning the other party. In litigation you never know what the outcome will be until the case is ruled upon. There are no guarantees that anyone will come out as the ‘victorious party’. In the long run, everyone pays a price in litigation.

Mediation is based on the principle that people are capable to resolve their own disagreements if given the right support. Generally, it is non-adversarial and the parties agree that all information will be openly shared in a safe, neutral environment. It is a voluntary and confidential process. Either party can withdraw or choose not to participate at any time. The mediator does not judge who is right or who is wrong, but works with parties to help them arrive at a solution to satisfy their interests. No tape recordings are made and no court reporter is present. The mediator will not reveal anything discussed during the mediation to anyone other than the participants. The mediator does not represent either party. Generally, the mediation does not include lawyers except in a consulting or reviewing capacity. However, in some cases, mediation includes both parties and lawyers.

What Kind Of Disagreement Can Be Mediated?

Generally any kind of disagreement can be mediated.Theexceptions are class action suits, cases involving punitive damages, and lawsuits which require statutory, judicial or regulatory case law to resolve. Whether it is a civil dispute involving hundreds of thousands of dollars, a workplace dispute, a divorce, or a family matter, the parties can resolve it without resorting to traditional adversarial litigation. Even after litigation has been started, mediation can be a practical way to settle the matter in a less expensive and timely manner.

When Is Mediation Useful?

Mediation is effective when both parties want to resolve adisagreement. It is most effective when:

• The Issue involves strong emotional feelings
• The parties know each other
• The parties want to maintain their relationship
• One party is uncomfortable confronting the other side
• The parties have reached an obstacle in their discussions
• One or both parties want to avoid costly legal litigation
• The issue does not involve class action or punitive damages

Who Should Consider Mediation?

Mediation works best for parties who wish to settle without going to court and are willing to commit to a good faith effort to do so. Mediation is very effective when the parties live nearby or have to maintain their relationship on a day-to-day basis. Co-parents, business colleagues or circle of friends and relatives often have continuing relationships with each other. There is a mutually beneficial incentive to continue an amiable relationship and to explore ways to prevent disagreements from arising in the future. Mediation allows the parties to maintain control over their decision making rather than letting a judge decide. The parties control the amount of information that becomes a part of the public record. Normally, court files are open to the public, including any allegations made by either party

What Goes On At A Mediation Session?

Within a mediation session, two types of meetings can occur. First, the joint session. This is when everyone is present; parties, their representatives and lawyers meet with the mediator and outline the basic issues, interests and positions of each side. The second type of meeting is called caucus. A caucus is a private and confidential meeting between the mediator and one of parties and their attorney(s). In mediations, both types of meetings occur as it helps overcome positional obstacles and helps maintains a forward progress toward a mutually agreeable resolution.