Disputes between neighbors, employers and employees, family members or business partners often end up in mediation. It is often more efficient and cost-effective than arbitration or litigation, and can also create win-win situations where the parties are able to find solutions that meet their needs and desires. A mediator is a neutral third party who oversees a negotiation process where the disputing parties come to their own mutually acceptable settlement of the dispute.
The mediation process is typically less formal than a court or arbitration proceeding, and the parties are able to discuss their perspectives in a setting that encourages open communication. The mediator does not make a binding decision, which differs from arbitration and traditional court proceedings, but the parties can choose to agree on an outcome that will be binding, if they wish.
In many cases, a judge will order the parties to attend a mediation session prior to or during the course of a lawsuit or other Court proceeding. In addition, mediation may be used in lieu of or in conjunction with any Court-mandated or supervised arbitration.
It is important for the participants to carefully consider their issues and goals before entering into a mediation session. It is best to enter into the process with confidence in one’s position but open to alternative perspectives and options. Having an open mind to a possible resolution will help the process move more efficiently, and can prevent the case from devolving into a battle over legal concepts such as fault.
During the first part of the mediation, the mediator will explain the mediation process and set out ground rules for the session. Usually, each side will be given the opportunity to make an opening statement, and it is best for attorneys to confer with their clients before making their statements. This allows the parties to tell their stories without interruption and provides the mediator with a better understanding of each person’s perspective.
The mediator will then use open-ended questions to try to uncover any underlying feelings, concerns or fears that may be at play in the dispute. The mediator will repeat back or summarize key points to the participants and will take note of any areas where there seems to be a lack of agreement or common ground.
Once the initial joint sessions are complete, the mediator will usually arrange private caucus sessions with each of the parties or their representatives in a separate location. This allows the parties to clarify or enlarge upon their mediation positions in a confidential environment where they can speak freely without fear of being interrupted by opposing counsel.
This part of the mediation will allow for each side to communicate with the mediator in a more private manner and will help the mediator gain a better understanding of each person’s unique situation, which can often lead to creative alternatives that the meditator would not have otherwise been aware of. While it is important to remain focused on the issues at hand, the mediator will likely attempt to broaden each participant’s view of the problem and its potential solutions by encouraging them to think “outside the box”. It is often in these discussions that the most productive ideas are developed.