The mediation process is a dispute resolution process. It is popular because it is often the most cost-effective, timely, and peaceful option for dispute resolution. Mediation is also fully confidential, and mediators cannot be called as witnesses against people they have worked with in the mediation process.
The mediation process is conducted by a third-party neutral called a mediator. The mediator is usually chosen by the parties involved or appointed if the mediation is court-ordered. The mediator’s job is to assist the parties through negotiation with the goal of reaching a resolution. A mediator must remain neutral and unbiased. Mediators do not take sides or determine the outcome of the process.
To find a mediator, parties might look through a dispute resolution organization’s directory or find a mediator through word of mouth. In situations where mediation is court-ordered, the mediator is usually assigned, though they might be able to choose the mediator from a list provided by the court.
In mediation, parties can have representation, such as lawyers, but they do not have to have a lawyer. If one party has a lawyer and the other does not, it is important for the mediator to discuss with both parties the potential for a power imbalance. If both parties agree to proceed, despite only one having a lawyer, the mediator might include a note on their file that there was a discussion regarding legal representation. It is important that the parties feel empowered in their decisions in mediation and do not feel, once the process is concluded, that either was at a disadvantage because one had a lawyer and the other did not.
On the topic of lawyers, some mediators are lawyers, but mediators are not required to be lawyers to provide mediation services. If a mediator is also a lawyer, they will not provide legal advice to parties in the mediation process. Mediators do not provide legal advice at all, though they might provide legal information to assist the parties in moving through discussions related to their dispute and the settlement of such. Mediators who are not lawyers often learn legal information related to the area of disputes they mediate. For example, if a mediator primarily mediates insurance disputes, they will likely learn the legislation related to insurance in their jurisdiction. This helps them to direct the conversation in the mediation appropriately, touching on topics pertinent to the case at hand.
At the end of mediation, if an agreement has been reached, the parties might choose to receive independent legal advice about the agreement. It is helpful for both parties to have independent legal advice. If only one party gets independent legal advice, the mediator will likely put a memo on the file indicating that one party received independent legal advice and the other waived their right to the same, just as they would if one party was represented through the process and the other was not.
In case of any errors or omissions on the part of the mediator, it is important for the mediator to have insurance. It is rare for there to be insurance claims against mediators, however, in the unlikely event that there were, errors and omissions insurance protects clients and mediators alike.
The goals of mediation include the parties deepening their understanding of one another and working toward the settlement of their dispute. Many parties who choose mediation are able to resolve their disputes with the assistance of their mediator, though some might proceed to another process such as arbitration.
Mediation is often successful because parties are motivated to save time and money and that is the reason they choose this process over more costly processes, such as litigation. Another reason why mediation is so effective is because the parties use their own knowledge of the dispute to reach a mutually satisfactory resolution to their dispute. In other, more adversarial processes, parties often have their autonomy and self-determination taken away and an outcome ordered upon them.
In the mediation process, the mediator helps the parties examine their positions and their underlying interests. With the understanding the mediator helps the parties build, they can create options that will satisfy their individual and shared needs. Sometimes this involves compromise, but other times parties are able to come to a resolution that fully serves them both.
Some folks think that a mediator will get them a resolution. Mediators guide people through the process, but they do not provide a resolution. Some styles of mediation might involve the mediator generating options for resolution; however, most mediators have the parties generate all settlement options. Mediation is a non-binding process, and the parties agree between themselves to follow any agreements they make in the process. It might seem surprising, but this is often more effective than court orders. Many mediated agreements are followed better than decisions that are imposed upon parties in arbitration or litigation.
If parties have multiple or complex disputes, mediation can help on a multi-faceted level. Through sharing information with each other and gaining deeper understanding, parties can often settle more than a singular dispute. In complex situations, such as family law disputes, wherein there are many aspects that need to be agreed to, mediators can lead the parties through multiple sessions and get the parties to a holistic agreement that concludes all issues between them.
Some people “pre-agree” to mediation through a contract that includes a mediation clause. This can be helpful for folks in saving time and money because they already know what dispute resolution process they will first employ when a dispute occurs.
There are disputes that people feel are not appropriate for mediation. These disputes might be those that involve violence or other illegal activities. Some organizations specialize in providing mediation services for these high-risk types of disputes. These organizations train their mediators and have safety plans and other precautions in place. Private mediators are cautioned in taking on these sorts of files unless they are able to provide the same precautions.
If parties have started in an adversarial process, such as litigation, they can choose to pivot, and try mediation. Litigation can be damaging to parties financially and emotionally, and switching to the mediation process can be healing to them. If mediation does not work, they can always return to litigation after they have tried to mediate.
If you have further curiosities about mediation, we encourage you to sign-up for our mediation practice group or contact us. We enjoy sharing our knowledge and would be pleased to answer your inquiries.
Blog post inspired by “Basic Skills for The New Mediator”, by Allan H. Goodman
