What is mediation?
Mediation is a private, informal, voluntary process for resolving disputes. In mediation, a neutral third party helps the parties find a mutually-agreeable solution to their dispute. The mediator has no power to impose a settlement.
Mediation is not the only way to resolve disputes, of course. In many cases, people can come to a settlement of a dispute on their own, by direct negotiation. Other times, people pursue litigation and rely on the courts or binding arbitration to resolve things. But mediation has advantages over both direct negotiation and litigation.
- requires skill at communication, persuasion, and negotiation tactics, and can give a big advantage to the party with more skills—or with a more skillful lawyer
- requires cooperation between the parties and agreement on what issues are important to discuss
- may make it hard for the parties to propose creative solutions
- may be more difficult if strong feelings are involved
- may be impossible if the parties don’t trust each other
- involves a neutral third party who can level the playing field between the parties
- allows the mediator to help the parties focus on the important issues
- encourages exploration of options and creative, “win-win” solutions
- lets strong feelings be expressed without de-railing the process
- allows parties to begin talking and gradually build trust
- is complex, public, very time-consuming, and very expensive
- usually requires the parties’ lawyers, rather than the parties themselves, to control the process
- focuses on the issues that have legal significance, and ignores other issues that may be equally important
- always has a loser, though it may not have a winner
- has an unpredictable outcome, which is ultimately under the control of a judge or jury, not the parties, and may or may not resolve all the issues
- often damages or destroys the relationship between the parties
- is private, confidential, much quicker and less expensive
- doesn’t require lawyers (although a party who wants to involve a lawyer is free to do so)
- happens when and where the parties choose, not when a court schedules it
- has an outcome that the parties decide on, not a judge, which means both parties can win
- can address and resolve any or all the issues between the parties, including ones that don’t translate into legal issues
- can preserve relationships between the parties—and even strengthen them
These advantages make mediation especially appropriate for conflicts where important relationships need to be preserved–such as conflicts within a family-owned business or professional partnership, as well as many employment and health care-related disputes.
Most mediation sessions are simple and informal. The parties and the mediator meet together in a room (typically around a table) and talk. There is no formal witness testimony or presentation of evidence—there’s no need to prove anything to the mediator because he isn’t going to make a decision about who is right. Usually the mediator has already talked to each of the parties or their representatives by telephone, to outline the process and identify the issues to be discussed; sometimes the mediator asks the parties to submit written statements explaining their views. During the mediation session the mediator often will meet with each of the parties privately. That allows the party to explain an issue or develop a proposal and “test-drive” it safely and confidentially, and also to vent, if necessary. It allows the mediator to understand better the interests underlying the parties’ positions, and to help the parties present their perspectives in a way the other party may respond to better. The combination of joint meetings and private meetings continues throughout the session. The mediator encourages each of the parties to explore options, helps them clarify and communicate their needs and interests, helps them understand the other party’s perspective, and may provide a “reality check” on a party’s expectations. A mediation session might last two hours or twelve hours or more. If possible, mediators usually prefer to keep a session going as long as there is progress toward a resolution, although sometimes mediations in complex cases involve multiple sessions. In most cases, where the parties are committed to the process, the mediation ends with a resolution that all parties agree upon.
You can use mediation at any time. Parties in litigation often elect mediation to help them settle the case before trial. In an increasing number of cases, parties agree (either at the time a dispute arises or in an earlier business agreement) to try to resolve disputes by mediation before any litigation is started. Although mediation has advantages over litigation no matter when it’s started, it offers the greatest benefit when it occurs early in the life of a dispute—before positions have hardened, feelings have intensified, and relationships have frayed, and before lawyers’ fees begin to mount up. Especially when relationships really matter, the principle should be don’t wait—mediate.