Mediation is a collaborative alternative approach to dispute resolution. It can be structured in different ways to fit the needs of the parties involved. Generally speaking, it is a voluntary process in which an impartial third party, known as a mediator, helps the sides communicate and negotiate to reach a mutually acceptable resolution. A mediator is different from a judge or arbitrator because they do not make decisions for the parties; instead, they facilitate dialogue to help the sides find common ground.
Many like that it offers a less adversarial and often more cost-effective alternative to litigation. For example, it can help parents planning a divorce establish a new working relationship for raising the kids or aid business partners who find it mutually beneficial to continue working together despite the current dispute. Judges will also ask parties to use mediation to resolve issues with fewer obstacles, leaving the court to handle ones where the two sides are further apart.
The Mediation Process
The process could be a single session but often involves several sessions. The process includes:
- Initial contact and agreement to mediate: The process begins when parties agree to mediate their dispute. This agreement may be voluntary or court-ordered. An initial meeting or call is set up to discuss the issues and the mediation process and select a mediator.
- Selecting a mediator: Both parties typically agree on a mediator with expertise relevant to their conflict. The mediator must be neutral, ensuring they do not favor either party.
- Pre-mediation preparation: Before the first mediation session, the mediator may gather information from both parties to understand the context and specifics of the dispute. It could involve reviewing documents, understanding the main issues, and setting an agenda for the mediation sessions.
- Opening statements: During the first mediation session, the mediator will explain the rules and objectives of the process. Each party will then have the opportunity to present their perspective on the dispute without interruption, helping to set the stage for understanding and empathy.
- Joint discussion and private caucuses: The mediator facilitates discussions between the parties to explore and define their issues and interests. It may involve joint sessions where both parties are present and private caucuses where the mediator speaks with each party separately to understand their concerns and goals more deeply.
- Negotiation and problem-solving: The mediator helps the parties brainstorm possible solutions. The focus is on finding a win-win outcome that addresses both parties’ interests. The mediator may propose solutions or reframe issues to help the parties see new possibilities.
- Agreement: If the parties reach a consensus, the mediator helps draft a written agreement outlining the terms of the resolution. Both parties then sign this agreement, which can be legally binding if necessary.
Follow-up sessions may also be useful to ensure that the agreement is being implemented effectively and address any new issues.
Attorneys are still critical
While mediation aims to be a straightforward and accessible process, having an attorney involved can significantly benefit the parties. An attorney can provide legal advice, ensure that their client’s rights and interests are protected and help them understand the implications of any agreement reached. They can also assist in drafting the final agreement to ensure it is comprehensive and enforceable.