Mediation: a Primer

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MEDIATION 101

Mediation Defined

 Mediation is a conflict resolution process.  Black’s Law Dictionary defines mediation as:

“Private, informal dispute resolution process in which a neutral third person, the mediator, helps disputing parties to reach an agreement.  The mediator has no power to impose a decision on the parties.”conflict-405744_1280

In a mediation, parties in conflict work with a neutral third party, known as a mediator, to reach a voluntary, mutually agreed upon resolution.  Mediation is an informal but structured process.  The mediator facilitates the discussion, enabling and assisting the parties to identify and craft their own resolution to their conflict.  The mediator’s primary function is to help the parties to understand each other.

The goals of mediation are:

  • To develop a fuller understanding by and between the participants regarding the matters and issues in dispute;
  • To clarify the issues; and
  • Whenever possible, to arrive at a mutually acceptable (or sometimes a mutually unsatisfactory) resolution of the matter(s) in dispute in a cooperative and informal manner.

Mediation is a Voluntary

Reaching an agreement in mediation is entirely voluntary!  You read that right; nobody can make the parties do or agree to anything in a mediation.  The parties or the mediator may make suggestions as to possible outcomes or resolutions, but only the respective parties can decide whether or not to reach an agreement and on what terms.  The parties have the right to terminate the mediation and pursue other alternative options (i.e., go back to court) at any time during the process.

What Happens in Mediation Stays in Mediation

Statements made and information presented during a mediation are usually confidential.  In other words, what is said by the parties or the mediator cannot be used by the parties against each other in court.  There are some exceptions to this confidentiality, but, for the most part, and in most circumstances, what is said in mediation is confidential and private.

Parties Help Shape the Mediation Process

meeting-1019773_1280There is no “one size fits all” mediation format or process.  Mediations come in many different “shapes” and “sizes” depending on a number of factors.  Those factors include: the background, experience, training and personalities of the mediator and the parties in conflict, whether or not attorneys are involved in the underlying disputes, the nature of the issues and facts in dispute, and the goals and objectives of the parties.  A key benefit to mediation is that the parties actively participate in designing and shaping the mediation process with the guidance of the mediator.  That’s right – the parties, with the mediator’s assistance, take control of their conflict and its resolution by structuring the mediation process itself.

Parties Can Agree to Mediate at Any Time

Parties can agree to mediate any disputes at any time (if there is a will, there is a way).  Timing can play an important role in the success or failure of a mediation.  Determining the proper time to mediate is more an art than a science.  Some disputes are ready for early mediation while others may take some time to ripen and for the parties to become open to mediation.  Remember, mediation is completely voluntary.  So, the best time to mediate is whenever the parties are motivated and agree to pursue mediation as a path to resolution and willing to actively participate in working through the process.  Usually, getting the parties to the table for a mediation with a somewhat open mind is half the battle.  The parties’ commitment to and participation in the process are usually very good indicators that mediation will lead to a resolution.  And, remember, success is subjective and can be measured in many different ways by different parties.

Finish What You Start: Document the Settlement with a Written Agreement

If the parties are able to reach a mutually acceptable resolution, then they (or their attorneys) should prepare a comprehensive written settlement agreement memorializing the terms of the agreement.  The written settlement agreement can be prepared with or without the assistance of the mediator, depending on the circumstances.  A comprehensive written settlement agreement clarifies and confirms the terms of the parties’ agreement and understanding and provides the parties with an opportunity for legal enforcement of a contract, if necessary.  But, aside from the legal importance and benefits of reducing a settlement agreement to writing, a written agreement provides tangible evidence that the parties accomplished something together and reminds the parties what they agreed to.  In addition, it helps prevent or minimize arguments and misunderstandings after the mediation ends, and may provide a road map for resolution of future confrontation between the parties.  Finally, a written agreement provides a clear ending point for the mediation.

The Bottom Line: Mediation Can Help Resolve Conflicts

Mediation is a powerful and effective conflict resolution process that can enable parties to resolve their disputes.  Mediation empowers parties to own their conflicts and the resolution of those conflicts.  This active self-determination can be very cathartic and productive for parties.

November, 2015