What is mediation?
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UPDATED: Jul 16, 2021
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To avoid the expense and time associated with courtroom litigation, it may be a good idea to consider mediation: a voluntary, confidential, and informal way for people to resolve civil disputes. During mediation, a mutually selected impartial mediator helps parties discuss their differences and negotiate their problems.
Unlike a judge, a mediator does not decide which party is right or wrong, nor does he or she render an opinion or issue a final decision. Instead, mediators help people work out their own solutions to problems by removing obstacles to communication and helping two people in conflict express their needs and concerns to each other. Mediation leaves the decision-making power solely with the parties and allows them to create tailored solutions to their problems.
The Mediation Process
While each mediation session is different, here’s how a typical session might work:
The session opens with introductory remarks. The location and setting of the session is normally controlled so that neither party feels threatened. After the parties are seated at a table, the mediator will introduce each person, generally give an opening statement explaining the goals of mediation, and encourage each side to work together to reach a settlement. The mediator may also seek an agreement from the parties to keep what is said during the session confidential and to abstain from litigation during the mediation process. Although attorneys are allowed to attend sessions and are permitted to confer with their clients, they may not speak for them.
Each party then makes an opening statement. The mediator will give both parties an opportunity to describe in their own words what the dispute is about without being interrupted. During the following step, known as information gathering, the mediator will try to uncover emotions and get the parties to talk by asking open-ended questions. The mediator will try to find common goals between the parties and will determine which problems to focus on.
Next, the parties engage in private caucuses. This is a confidential process that allows each party to meet privately with the mediator. It provides a safe environment to discuss the strengths and weaknesses of the party’s position and allows each person to shed light on underlying fears and to brainstorm possible solutions. This is also an opportunity for the mediator to ask probing questions that may create doubt in the party’s mind over the soundness of a particular position. The goal of this step is to find some common ground and come up with settlement ideas.
Private caucuses are followed by joint negotiation. After meeting individually with each party and finding that each side is committed to achieving a negotiated settlement, everyone is brought back together to negotiate directly. Ideally, joint negotiation is followed by a closing. If an agreement has been reached, the mediator may put the main points of the agreement in writing and then read them aloud to the parties. The parties may also be asked to sign the agreement. If no agreement is reached, the mediator can review what took place during the session and inform the parties of other options, such as going to court, attending another mediation session, or meeting with an arbitrator.
A typical mediation session lasts around 3 to 4 hours, although the time can vary depending on the case and the number of issues to resolve. Cases with more than two parties can last even longer. If the issue involves a divorce or a major business dispute, the process may require multiple sessions.
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Situations That May Warrant Mediation
Mediation can be an effective option for various kinds of situations including the following: 1) when there are strong emotions involved and one or both parties want the opportunity to be heard, uninterrupted, by the other; 2) when parties need or want to continue their relationship but are having a hard time getting past the issue; 3) when divorcing couples need to make arrangements for co-parenting; 4) when a conflict exists between a party and his or her attorney; or, 5) when parties have conflicting views regarding the facts or the law.
While mediation can be quicker than trials or arbitration, the process is not for everyone. If a party wants to set a binding legal precedent or interpret the law, filing a lawsuit in court may be the better option. Mediation may not work well for parties looking to establish a no-settlement reputation, or for people who want a jackpot damage award. In all cases, an attempt at mediation may fail if the parties are not willing to listen to each other and make a good-faith effort to participate in the mediation process.