Mediation is a dispute resolution process that can save the disputants a significant amount of time and money. It also allows the parties to come up with solutions that fit their specific needs and circumstances rather than having a judge or jury decide for them. Mediation can also preserve delicate family relationships that may not survive litigation.
A mediator is a neutral person who facilitates discussion of a dispute and helps the parties reach their own voluntary agreement for settlement. Unlike in a Court case, where the dispute is an open matter of public record and the outcome can be known in advance, mediation remains confidential and settlement results are not made public.
Most mediated cases will begin with the mediator and all disputants in a joint session to introduce themselves, explain their view of the facts, and clarify what they consider a satisfactory resolution of the conflict would look like. Depending on the type of case, other participants may be included at this stage such as witnesses, subject-matter experts, interpreters or family members.
Once everyone is present in the mediation, the mediator will usually start by asking if there are any questions. Then a series of short discussions will take place. These can be structured around a particular topic such as the “heart of the matter” or the different issues involved in the dispute.
During this stage of the mediation, the mediator will listen to what each party has to say and provide feedback in a supportive manner. They will also make suggestions to help the disputants narrow down their differences and explore the possibilities for resolution.
In some mediations, the mediator will move from a joint session to separate meetings with each of the disputants called caucuses in order to gain a more detailed understanding of each side’s perspective. This is done in an attempt to avoid “generating more heat than light” in the negotiations.
The next phase is often the most difficult and involves the mediator assessing whether there are any areas of agreement or disagreement. Often the parties will agree to a “memorandum of understanding” at this stage. The terms of this agreement can be changed during the process as the parties come to a better understanding of what is important to them.
Once an agreement is reached, the mediator will typically draft a legal document that outlines the agreed terms of the dispute. It is then signed by both disputants. This is often referred to as the “consensus memo.” The parties will also sign an “agreement to mediate” form which states that they have voluntarily entered into the mediation and agree to do their best to resolve the dispute.
Regardless of the outcome of mediation, it is often helpful for disputants to understand their legal rights in the conflict so that if an impasse is reached as to some or all of the issues at issue, they can still obtain a court judgment in favor of them.