What is Mediation?
Mediation is a voluntary Alternative Dispute Resolution (or “ADR”) process (meaning a process for resolution of disputes other than by formal litigation). In the mediation process, the parties to a dispute engage in a structured negotiation to resolve the dispute, with the assistance of a neutral, trained facilitator, referred to as the “mediator.” The mediator is selected by agreement of the parties, and he or she is retained jointly by the parties. The mediator’s fees are typically shared equally, although, like everything else in this form of ADR, the parties may agree otherwise. Unlike an arbitrator, a mediator has no authority to impose an outcome of the dispute upon the parties. Instead, typically through an in-person mediation session in which the matters at issue are thoroughly discussed and explored, the mediator assists the parties in reaching a voluntary resolution of the dispute by helping them to understand each others’ needs and interests, as well as the risks and costs associated with formal litigation, and by assisting them in the negotiation process. A successful mediation results in a binding and enforceable agreement, voluntarily entered into by the parties themselves, which resolves the dispute without the necessity of a court or arbitrator resolving the dispute for them. Although in most cases the parties are represented by attorneys in the mediation process, they are not required to have attorney representation.
Mediation is appropriate for the resolution of almost any type of dispute, regardless of the number of parties, or the complexity of the issues.
Advantages of Mediation
A civil lawsuit can take 1 – 2 years or more to wind its way through the process before being set for trial. Depending upon the complexity of the dispute, the trial can take anywhere from several days to several months, especially if post-trial motions are filed. Even then the case may not be over, since either side may appeal, adding potentially another 1 – 2 years to the process. Mediation, on the other hand, can be scheduled whenever the parties wish to do so, and the typical length of a mediation is between several hours to 1 – 2 days.
Unlike a trial, a mediation is held in a private office. Because the process is informal and there is no formal “judgment” or “award,” the parties are free to tell “their side of the story” but no formal oaths are administered. Because the parties control the process, with the assistance of the mediator, they are free to determine such things as how long it will last, when there will be breaks, and when follow-up sessions will be scheduled should that be necessary.
Disputes can be resolved through mediation at a fraction of the cost that would be required to resolve them through formal litigation. The earlier in the life of a dispute that mediation is scheduled, the greater the potential savings that can be achieved, by avoiding costly formal “discovery” (such as written interrogatories and requests for documents, and depositions of parties and witnesses taken under oath), and by avoiding trial.
Unlike trial in a public courtroom, mediations are held “behind closed doors.” In addition, to encourage the parties to speak openly and freely, the mediation proceedings are confidential and may not be used by either side in the unlikely event the matter is not resolved and litigation is necessary.
- THE PARTIES CONTROL THE OUTCOME
Unlike a trial, or even an arbitration, the outcome of a mediation is completely controlled by the parties themselves. No one can be forced to accept an outcome in mediation. Instead, there is an outcome only when the parties agree to it. Furthermore, the parties are free to create an outcome that addresses everyone’s needs and interests, in a way in which a court or arbitrator could not.
- FLEXIBLE TIMING
Instead of being beholden to the strict calendars of overburdened courtrooms, the parties have complete flexibility to schedule mediation at a time that is convenient for them.
- COLLABORATIVE PROCESS
Instead of battling it out in the adversary process of litigation (in which usually there is a “winner” and a “loser”), participants in mediation work together to solve the problems that have brought them into the dispute. This can be an especially important consideration in disputes involving parties (such as family members or business partners) who had a preexisting relationship that is worth preserving, and which might otherwise be irreparably damaged in the litigation process.