• mediation speeds up resolution
    saves money, and satisfies clients.

what mediation is & what it is not

Mediation occurs when a third party helps two parties who have a dispute resolve it. The third party mediator works to improve the quality of communication between the parties, allow their emotions to be aired, assess their mutual interest in ending the conflict, examine their respective interests, generate options that have not been considered. The mediator also may provide them with feedback on the reasonableness of their approach to the conflict, evaluate the potential outcomes, and coach them in negotiating a settlement of the dispute.

The process, in the context of civil litigation, may occur at any time: from before the filing of litigation to while the case is on appeal. The parties gather in a single location and the mediator opens the discussion by describing the process and inviting each side to present its viewpoint. Each side makes an opening presentation, after which there may be clarification of specific points, a review of the differences in the positions, discussion of the interests of the parties and possible options for resolution. Or not, depending on the dispute. Each side then meets separately with the mediator, at which time more detailed discussion of the dispute generally occurs. Offers and counteroffers are conveyed back and forth as the mediator discusses options for resolution, and the risks associated with different choices facing the parties. The mediator may coach the parties and their counsel on negotiation strategy. At the conclusion of the mediation, the parties have generally arrived at a settlement of the dispute.

Mediation is fundamentally different from arbitration. An arbitrator is a neutral third party selected by the parties to decide the outcome of the dispute. The arbitrator substitutes for the judge and jury in deciding the outcome of the dispute through a truncated, hopefully expedited process not unlike litigation: presentation of evidence and argument to the arbitrator, who decides what will happen. In mediation, it is the parties themselves, not the mediator, who decide what will happen.

Mediation is also differs fundamentally from judicial settlement conferences. In a settlement conference the judge considers the viewpoints of both sides, and tries to persuade the attorneys and parties of what a reasonable outcome by way of settlement would be. The process is limited by the time available to the judge, generally anywhere from a half hour to three hours. Mediators tend to focus more on the parties themselves and their interests, and look to the parties for the outcome. Because it usually lasts much longer—often a day or more—the process allows for a much more detailed examination of both the merits of the dispute and the terms of a resolution.

mediators follow some basic principles in the work they do:

  • Self-Determination. The mediator does not make decisions for the parties. They control the outcome, and no one agrees to anything other than voluntarily.
  • Neutrality. The mediator’s ability to be of assistance requires neutrality because the mediator needs to have the trust of all parties to be of any help. The mediator cannot become the ally of any side.
  • Confidentiality. Confidentiality is what permits the parties to be more open than they could be in litigation. No one need be concerned that what they say will be recited back in court, or that information provided to the mediator in confidence will be disclosed to the other side.
  • Listening. The mediator is new to the conflict and must listen to the parties to obtain information. In addition, people are generally more willing to work hard at resolving a conflict when their story about it has been heard.
  • Fair Process. The mediator is responsible for ensuring that the process is not compromised by conflicts of interest, misconduct and other problems that would bring the outcome achieved into question.

The role of an arbitrator or judge in litigation mirrors two of these factors (neutrality, fair process) but not the others. A judge or arbitrator makes decisions about what will happen, not the parties. While arbitration is often kept confidential, what happens in court is on the public record. Judges and arbitrators listen to arguments and testimony for information to help make their decisions, but need not be concerned about whether the litigants recognize that their concerns are understood. Even when the judge or arbitrator is conducting a settlement discussion, there can be an element of coercion if the judge or arbitrator will be the one responsible for the case if it is not settled, and there is rarely sufficient time for each side to feel that its concerns have been fully considered.

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