What is Mediation?
There are several different options for resolving disputes. Mediation is one of those options. In mediation a neutral third party (the mediator) helps parties resolve their dispute. The mediator works equally on behalf of both parties but does not represent either of them.
One important quality of mediation is that the mediator has no decision-making authority and cannot tell the parties what to do. The mediator’s job is to help the parties understand their interests and options, to generate creative ideas and to facilitate the negotiation. The parties are in charge of reaching their own agreement.
There are different mediation styles. An ‘evaluative’ mediator will be more direct and may give the parties the mediator’s opinion about what the outcome should be. A ‘facilitative’ mediator focuses more on helping the parties reach their own agreement rather than providing the mediator’s opinion.
The following are key aspects of mediation:
Confidential. Mediation is a confidential process. The purpose of confidentiality is to allow the parties to generate creative ideas and make settlement offers. Participants can speak freely without being concerned that it will be held against them later. The main exception to confidentiality is that clients can discuss the mediation with their attorney. Also, each state has exceptions to mediation confidentiality which are typically related to the safety of the participants or their children.
Mediators are Neutral. Mediation is based on neutrality. A mediator cannot be effective if he or she is biased in favor of one party. The mediator must inform the participants if there is any reason why he or she may not be completely neutral. Further, the mediator should be impartial about the result. This means he or she should not have a preference about the terms of the final agreement.
Not Representation. Many mediators are also practicing lawyers. When a lawyer is acting as a mediator, the lawyer is not acting as a lawyer and does not represent either party. A mediator can give legal information (what the rules are) but cannot give legal advice (what the clients should do).
Voluntary. Mediation is a voluntary process. Anyone can end the process at any time for any reason. If a court case has been filed, people may be required to participate in “mandatory” mediation under certain circumstances. However, this website focuses on the voluntarily approach.
Private. Mediation is a private process which typically occurs at a mediator’s office rather than at a courthouse. Mediated settlements are typically written up and filed with the court, but not always.
Good Faith and Full Disclosure. All relevant information has to be made available to all participants. If certain information is unknown, the mediator will work with the participants to figure out how to obtain the information.