What is Mediation?

Mediation is a voluntary, non-binding, private, and informal process that allows parties to reach an agreement through negotiation and a mediator’s help. Mediation has become increasingly popular over the years for parties who are trying to avoid litigation and has shown to be successful in its execution of principles and strategies. Mediation’s affordability over other legal avenues in addition to its attention to parties’ interests and emotions, which is not taken into account as much, if at all, in courts has made it into the preferred avenue for dispute resolution.

Mediation is a process that was introduced as a way to encourage parties to arrive at an agreement by promoting their own willingness to communicate with one another with the help of a third-party neutral. Parties are decision-makers and there is no formal process of discovery or argumentation. Through mediation, parties have opportunities to break impasse, generate options, reconcile, and work through negative emotions as opposed to simply reaching a transactional solution and abandoning a potentially salvageable relationship. In order to do so, parties must feel at ease with the process and must trust that the mediator is truly neutral and cares about the situation.

The Mediator’s Job

A mediator’s job is to facilitate communication between parties without imposing his or her own ideas. A mediator does not provide parties with legal advice. By demonstrating genuine impartiality, parties trust the mediator’s guidance and are more likely to act in compliance with the agreed upon settlement. While the mediator controls the process of mediation, a successful mediator understands that productivity and resolution lie in the hands of the parties. Therefore, it is important that the parties are comfortable with who they have as a mediator to ensure movement in the right direction during the process.

Risks of Litigation

  • The parties must wait long periods of time to appear before a judge and to reach a judgment.
  • Judgments are not granted with regard to each party’s unique circumstances.
  • Can cause irreversible damage to relationships
  • Parties are subject to unfavorable verdicts.
  • No opportunity for creative solutions
  • No opportunity for reconciliation
  • No control over process
  • No confidentiality
  • Highly formal
  • Bad publicity
  • High costs
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Benefits of Mediation

Mediation is a confidential process in which everything is guaranteed to stay between the parties, whether they reach a settlement or not. Things that are discussed in the mediation between the parties are inadmissible as evidence against another party in court.

Confidentiality within mediation allows the parties to express themselves candidly and interact with one another without fearing legal consequences. Therefore, it allows the parties to fully be themselves without needing to worry about later repercussions for their disclosures.

Litigation is often a very costly and lengthy process that keeps disputants’ lives intertwined with one another for longer than they would ideally want to be. Both sides could benefit from redirecting money that would be used for litigation toward paying for the mediation and other creative solutions that could sprout during the process. Being caught in litigation uses up resources for both sides.

Mediation operates outside the court system so parties don’t need to wait their turn on overcrowded court dockets.

Reconciliation is an element of conflict that is never taken into account in litigation. Mediation values options beyond settlement and views conflicts as opportunities for growth and reconciliation between parties.

Mediation is a process that allows for integrative bargaining, which addresses parties’ interests behind their positions. Integrative bargaining “does not assume the value being bargained is fixed” and “seeks ways in which both sides can achieve their goals with as little cost as possible.”

Studies show that 80% of mediated cases settle on the same day. Even if the case does not settle on the same day, the procedure provides a clearer direction and understanding of the issues. In addition, the mediation could lead to a second meeting in which parties could reach an agreement or to an attempt at other ADR processes.

The parties can set their own framework within mediation that they both agree to, which gives them autonomy and flexibility within the process.

Straus Institute for Dispute Resolution, Mediation: The Art of Facilitating Settlement, (2014).