The United States Department of Health and Human Services defines mediation as a type of assisted negotiation. During mediation, a neutral, trained third party helps two or more parties to negotiate in order to resolve their dispute.
Generally, mediation uses a problem-solving approach to resolve a conflict instead of a traditional, adversarial approach. Mediators are individuals who are trained in communication and problem-solving skills that they use to help the parties make the best possible decisions about resolving their disputes.
The mediation process is informal and voluntary. The rules of evidence do not apply, and formal testimony is not taken.
Mediation allows the parties to control the dispute resolution process instead of having a court or an official control the process. Mediation is typically more economical and faster than traditional adjudication.
Even when the mediation process does not resolve the dispute, it does assist the parties with clarifying and narrowing the issues so that the adjudication process can proceed more efficiently.
Mediators are not decision-makers or judges and do not have any personal interest in the outcome of a case. A mediator uses their expertise in communication and negotiation to guide the parties to make decisions for themselves.
This differs from other alternative dispute resolution (ADR) types, such as binding arbitration. With binding arbitration, the arbitrator’s decision is final and enforceable under the law, which means that the parties have to comply with the decision, and it cannot be appealed.
Binding arbitration is more similar to court proceedings than mediation.
When Is Mediation Commonly Used?
Mediation can be used in many different types of cases, including conflicts within agencies and with regulated parties, states, contractors, and other private persons. Mediation can be beneficial in situations where:
- There is not a need to establish a precedent;
- There is not one single solution that is required;
- Emotions, tensions, or transaction costs are high;
- Communication between the parties has broken down;
- Time is a factor;
- Failing to agree does not benefit one or more of the parties;
- Parties have an interest in maintaining confidentiality; and
- The parties need or want to maintain some type of ongoing relationship.
Family law is one field of law where mediation is commonly used. Some individuals prefer to settle their issues amicably during a divorce instead of going to court or having their attorneys handle it.
An individual should prepare for their family mediation session in order to make the most of the process and make better use of their time and resources.
Mediation can also be used to create prenuptial agreements. The mediation process can also be used to create:
- Parenting plans;
- Trusts and estate planning;
- Custody disputes;
- Eldercare difficulties;
- Sibling conflicts; and
- Childcare agreements.
Mediation is also used in business and employment law. Employees can use mediation to resolve discrimination and harassment issues as well as to file grievances.
Tenant-landlord disputes are commonly resolved using mediation. The mediation process is an amicable way to resolve issues for real estate brokers, contractors, builders, landlords, and other parties.
Personal injury cases can also benefit from mediation between parties who want to communicate more openly with their alleged offenders. It is important to be aware that the parties may still use the conventional civil process if mediation is not successful.
What Are the Benefits of Mediation?
There can be many benefits to using mediation. The process increases the flow of information, as the parties to disputes are often reluctant to share information.
A mediator can help the parties recognize a complete understanding of relevant information, which enables them to make better decisions. Mediation also helps the parties consider and understand the other party’s perspective.
Parties who are involved in a dispute commonly discount or miss things that are said by the other party. Mediators can help ensure that vital information is not overlooked.
A mediator is trained in problem-solving skills and communication, which can help benefit the parties by separating them from the problem. This can help the parties review difficult topics without sacrificing important relationships.
What Does the Mediation Process Look Like?
Mediation has three general phases. First, the mediator will create a safe environment where the parties are able to discuss difficult topics.
The mediator may provide an overview of the process, including:
- The mediator’s role;
- What happens in the various mediation sessions;
- Confidentiality.
During this phase, the parties can create ground rules for the conduct of the mediation and a general timetable for the process. This phase includes a joint session meeting with parties, during which each can voice their views and desired outcomes.
Second, the problem-solving stage is when the mediator helps the parties focus on issues, interests, options for resolution, and criteria for analyzing the options. The parties can meet separately with the mediator in order to share their confidences and privately consider their options.
During the final phase, the parties will decide what terms to agree upon to resolve the dispute. The mediator can help draft a document that reflects the parties’ agreement.
If the agreement needs to be passed on to others for approval, the mediator and the parties will review the process for finalizing the agreement. If parties are not able to reach an agreement, the mediator will help ensure that they understand the next steps available to them.
How Is Mediation Different from Litigation?
Meditation is different from litigation in several ways. The parties have a greater degree of control during a mediation.
The parties involved have an equal say during the mediation process. In addition, there is not a determination of fault.
Mediation may be able to make the termination of a working relationship more amicable. A mediation settlement can help preserve a working relationship in ways that would not be possible during win-or-lose litigation procedures.
Typically, the parties are more satisfied with the solutions they help create instead of those imposed by a third-party decision-maker during litigation. Mediated agreements often resolve interpersonal and procedural issues that are not necessarily accessible to legal determination.
After using mediation to resolve an issue, if the parties have a subsequent dispute, they are more likely to use a cooperative forum of problem-solving to settle their differences than to pursue an adversarial approach.
Who Is the Mediator?
A mediator is a volunteer who is professionally trained to assist parties in reaching a solution to a conflict. During the mediation process, the mediator will:
- Listen as the parties clarify the issues of concern;
- Inquire about any questions to help the other parties understand the issues;
- Guide the parties through the process to develop solutions;
- Assist the parties in crafting an agreement that is satisfactory to all;
- The mediator will not take sides, make judgments, assess blame, or tell the parties what to do; and
- The mediator facilitates the conversation between the parties;
- The parties themselves will create the agreement.
Do I Need a Lawyer?
You might be considering using mediation to resolve a dispute, or you might have been ordered by a court to attend mediation. If this is the case, it is important to consult with a family law attorney. Your lawyer can explain the basics of the mediation process and how to proceed.
Your lawyer can advise you of your legal rights and options and even represent you during negotiations if you so desire. Mediation can be an excellent way for you to have a chance to resolve your dispute in the way you see fit.
