What Is Mediation?
Mediation is a process for resolving disputes whereby an independent mediator assists the parties in reaching a mutually satisfactory settlement. It is an extension of the parties’ own negotiations.
The mediation process is entirely voluntary and non-binding on parties and the mediator. The mediator has no power to render a decision or to force the parties to accept a settlement. Rather, the mediator’s role is to assist the parties in their negotiations by identifying obstacles to settlement, developing strategies for overcoming them and identifying everyone’s needs.
A mediation session involves a discussion of the dispute by the parties as opposed to the formal presentation of witnesses and evidence that takes place in a trial or arbitration. The session will normally be attended only by the mediator and the parties. The parties’ attorneys may participate in some instances, however can always be on standby for advice. Due to the informality of the process, a mediation can usually be completed within a week. Each case is however unique and is treated so.
A mediation session is private and confidential. It is normally held in a private office, meeting room or online and no public record is made of the proceedings. Any statements made during the proceedings are inadmissible as evidence in any pending or subsequent litigation. However, if parties come to a full or partial agreement, they may make the agreement binding through the court.
A mediation session typically begins with a joint meeting of the parties and the mediator (with their attorneys – and in some cases – insurance company or other representatives on standby telephonically). The mediator first explains the format and discusses the confidential and non-binding nature of the proceedings. The mediator will then ask each of the parties to make a presentation of their case, identifying the issues in dispute.
Thereafter, the mediator will usually separate the parties and begin meeting with them in a series of private, confidential meetings called “caucuses”, only revealing information shared by each party with their permission. In these caucuses, the mediator works with each of the parties to analyze their case and develop options for settlement. Normally, the mediator will caucus numerous times with both sides until the case either settles or it becomes apparent that settlement will not be reached.
Mediation is different from an arbitration, as the mediator does not render a decision. Instead, mediator allows the parties to make their own decisions and fashion their own settlement. The mediator generally doesn’t make recommendations but rather may brainstorm various ideas with the parties and allows the parties to make their own decisions based on a realistic analysis of their case.