What is Mediation?
Mediation is a conversation. Disputing parties engage the services of a Mediator to explore, discuss and craft party-driven solutions to their dispute.
A key feature of Mediation, contained within all Ethics Codes for Mediators, is party self-determination. So, if you do not see something you expected or wish to see in your Mediation, you should discuss it with your Mediator. A key component of any Mediation is the Pre-Mediation conference, which allows the parties or their representatives to work with the Mediator and design the process they wish to engage. Both sides have the opportunity to review the materials presented by the other. Often the Mediator may also ask for confidential submissions designed to provide important context for the Mediator, and for each party to begin thinking about their options.
Mediation is private and non-binding. The parties and their attorneys all convene with the Mediator in a non-court setting, usually the offices of counsel or a neutral location. There is no judge or jury listening to the process, and mediation is never held in a public place like a courtroom. Confidentiality of the Mediation is protected by governing laws and the Agreement of the Parties signed before the Mediation begins.
To optimize success, Mediation is a process. After the Pre-Mediation conference has determined some details of how to proceed, typically at the start of a Mediation session, the Mediator outlines what the process entails, and confirms any agreed upon process decisions. Sometimes the parties (or their attorneys) are invited to make statements. The Mediator may ask questions of each side. Another option often used is caucus where the parties (and their attorneys) move to separate rooms where the other side cannot overhear. Some Mediations are conducted entirely in a joint session where all parties remain in the same room. Some, although rare, are conducted entirely in caucus without the parties ever being in the same physical location. In that case, the Mediator listens to each side’s account of the issues, and their related understandings and beliefs.
Because mediation is non-binding, the Mediator does not make a decision for the parties, but instead facilitates the parties coming to a resolution – one that is acceptable to everyone involved. In Mediation we seek “Win-Win” outcomes. The often misused description of compromise where everybody leaves a little unhappy is rejected. Mediation seeks, and when properly engaged often attains, mutual satisfaction.
Mediation can be court-mandated or voluntary. Some courts require certain cases to undergo Mediation before they can be tried before a judge or jury. Others make Mediation a suggested, voluntary process. The parties in a lawsuit can always agree to try mediation, without the court’s recommendation or requirement.