What Is Mediation? | Mediation is a process in which two or more persons who are having a conflict or dispute voluntarily meet with a facilitator to discuss and attempt to resolve their differences. It is a form of alternative dispute resolution (or “ADR”), meaning an alternative to litigation or trial. The process is generally informal. It is not necessary to initiate any legal proceedings in order to participate in mediation, although it is also used as a platform for settlement negotiations in cases where a legal action already has been commenced or the parties are represented by attorneys. The process is confidential; that is, the parties agree they will not disclose to others what is said during the mediation. If the parties so desire, they may make their agreement “binding.” This means that the agreement could later be enforced in court, should that become necessary.
What Is the Role of the Mediator? | The mediator acts as a facilitator to help the parties discuss and resolve their differences in an effective manner. The mediator does not act as a judge of who is right or wrong (although some mediators are former judges). The mediator does not give legal advice to the parties (although many mediators are attorneys). Rather, the mediator is a neutral participant who helps to organize and manage the discussion and settlement process. When a solution is reached, the mediator helps the parties put their agreement in writing.
What Are the Advantages of Mediation? | For most people, being involved in a conflict or dispute is not a comfortable experience. Depending upon the circumstances it can be distracting, stressful, emotionally upsetting, and more. Litigation, where one or more parties make formal claims in court, can be expensive and time-consuming; and the vast majority of civil cases that are filed in court end up being resolved without ever going to trial.
Mediation, by comparison, takes less time, is less expensive, and allows the parties to retain control over how best to resolve their dispute. It is not unusual for court cases to take more than a year to come to trial, while mediation can lead to resolution in months or weeks. This can also yield savings in attorney fees, court costs, and other expenses that would be entailed in litigation. Equally important, mediation allows the parties much more control over the process and terms of resolution, while litigation is a prescribed process that ultimately places the outcome of the dispute in the hands of a judge or jury.
There are other important advantages to mediation as a means of resolving disputes, including greater privacy and the potential for a less adversarial approach to problem solving. But it does require the willingness of both (or all) parties to participate in the process.
What If My Case Is in Litigation? | Mediation is commonly used as a platform for settlement negotiations in cases where a legal action already has been commenced or the parties are represented by attorneys. Your attorney is familiar with the mediation process and is in the best position to advise you regarding whether and when mediation would be beneficial in your particular case.
Is Mediation Right for Me? | There are many advantages to using mediation as a means of resolving a conflict or dispute, but it is not necessarily the right choice in every case. Mediation requires that both (or all) parties be willing to participate in the process. This, in turn, requires a willingness to communicate and to consider compromise. If one or more of the parties is unwilling to do this, mediation may not be possible, at least at that time. Mediation may not be the best choice if there is or has been a dominating or abusive relationship between the parties. If you feel this applies in your situation, we can recommend resources that may be helpful in addressing the conflict.