What is Mediation?

Mediation is an alternative dispute resolution (ADR) process wherein parties are assisted by a third party who is skilled and trained in mediation. The third party serves as the mediator, and facilitates confidential communication, reconciliation and negotiation between the parties for them to be able to reach a voluntary and mutually agreeable resolution. The mediator does not serve as a judge who determines which party is right or wrong. Thus, the mediator works with parties to help them arrive at a solution that is favorable to their interests. Aside from this, the mediator has the responsibility of keeping the whole process confidential. He may not reveal anything discussed during the mediation to anyone other than the participants. There are no tape recordings or court reporters during the mediation. In addition, the mediator is also a neutral party.

There is a stark difference between Mediation and Litigation. In Litigation, the parties employ the services of lawyers who will look into the merits of a case filed in court. This is a lengthy and costly process, and normally takes years before a resolution is made. In contrast, Mediation is based on the principle that people can reach a resolution to their own disagreements if given the empowerment. It is non-adversarial, and parties in conflict agree to openly share information in a safe and neutral environment. It is also a voluntary and confidential process. Nevertheless, either party has the liberty to withdraw participation at any point in the process. Moreover, as a general rule, lawyers are included in mediation only in a consulting or reviewing capacity. In some cases, mediation may include both lawyers and their clients.

When is Mediation used?

Mediation is effective when both parties want to resolve a disagreement. It is most effective when the issue involves strong emotions and the parties know each other personally. Mediation will also help them preserve and maintain their relationship. It is also useful if one party in uncomfortable confronting the other, especially when they have reached an obstacle in their discussions. In addition, mediation can be conducted when one or both parties want to avoid the high cost of litigation, and when the issue does not involve class action or punitive damages.

What kinds of disagreements can be mediated?

Any kind of disagreement can be mediated. The salient feature of mediation is that the parties can resolve a disagreement without resorting to traditional adversarial litigation. Mediation can also be a practical solution to settling a matter even if litigation has already started. It is less expensive and more efficient.

Who is Mediation for?

Mediation can be beneficial to different people who have a continuing relationship with each other such as families, business partners, office colleagues, friends and relatives. Preserving the amiable relationship between two (or more) parties is mutually beneficial and is essential in preventing disagreements from arising in the future. The whole process works best for parties who wish to settle a dispute without elevating the case to court, and those who are willing to commit time and effort to do so. It is especially useful when parties live nearby or have to maintain their relationship on a day-to-day basis. This is because mediation allows the parties involved to have control over their decision making. Furthermore, it does not employ a third party such as a judge in making decisions. Moreover, since court files are open to the public, the information shared during the whole process is under the control of both parties. They can regulate the amount of information that becomes a part of the public record.

What is Mediation used for?

The focus of mediation is the unspoken and underlying interest of the parties, and not their positions. Thus, mediation is used to define complaints, problems and disputes and discover options and solutions. This in turn would help prevent future disagreements. Furthermore, it is also useful in coming up with a resolution that is mutually agreeable and that answers to the needs of both parties. In the mediation process, guidelines and policies regarding the settlement and the mediation process are made clear to parties. Moreover, a record agreement with a written documentation is presented during the mediation process.

What Are The Salient Features Of Mediation?

Efficiency of mediation is demonstrated by the low cost and high success rate. Apart from this, there are other key features that should be taken note of. These are:

• Privacy. The mediation process, as well as everything discussed and the documents exchanged, are confidential. Furthermore, the whole process is a private endeavor. Mediation is not a matter of public record. Thus, any legal or other suppositions presented during the process are confidential.
• Control. A judge is not present to decide the outcome of the mediation. There is also no jury to tell right from wrong. Parties in conflict have the equal opportunity to tell their side of the story without lawyers objecting every now and then to claim that their statement is inadmissible. Clearly, the parties’ the disagreement and the resolution to it lie in their hands.
• Relationships. Important relationships, such as business partnerships, family, friendships, and other social relationships of long standing are reinforced as a result of mediation.
• Responsibility. The process encourages both parties to take responsibility for the roles that they play in the disagreement. Mediation entails not blaming the other side. Instead, it cultivates the ownership of the things contributed or done to create the disagreement.
• Speed. The speed of coming to a resolution can vary from a day or two to no longer than 30 days. Nevertheless, more complex disputes and conflicts may take more time and communication.

What Are The Direct Benefits Of Mediation?

Mediation provides a quicker, more cost effective, and more satisfactory outcome than litigation. While going through litigation may take months or even years, going through mediation can take as little time according to the parties’ needs and schedule. The amount of time spent in mediation is determined by the complexity of the issues and relationships, the number of participants, the cooperation of the parties, the readiness of the parties to explore a mutually satisfying resolution, and a variety of other factors. The period could be as short as half a day or several half and full-day sessions. The time period depends on the parties and their capacity to reach a mutually agreeable resolution. Mediation is voluntary, and both parties have to have an agreement to produce a final resolution. As a result, the outcome is tailored to satisfy them. This leads to a higher chance of both parties’ compliance with the mutual agreement since it is an agreement that meets their needs. Most importantly, the parties have a high chance of preserving their relationship.

Who Wins, Who Loses In Mediation?

In theory, no one loses, and everyone wins. However, this should not be misunderstood as both parties being automatically happy with the outcome of mediation. Both parties have the opportunity to tell their story and push for their interests. Thus, it is the mediator’s duty to facilitate and make sure that each party is heard. It should be noted as well that each person has the responsibility to say what is on their mind. This setting provides each party flexible time to think, reconfirm their interests, and explore solutions. In the end, the agreement is mutual, and neither party is forced to agree to anything that is not in his interests.

When Is The Best Time To Begin Mediation?

The best time to begin mediation is before parties incur the expense and emotional turmoil of litigation. Acquiring legal representation is not a hindrance as most legal professionals and courts advise mediation before litigation. This is because most cases settle before the trial begins.

What Goes On At A Mediation Session?

There are two types of meetings in a mediation session. The first is the joint session wherein both parties are present, along with their representatives and lawyers. They meet with the mediator and outline the basic issues, interests, and positions of each side. The second type of meeting is the caucus. This is a private and confidential meeting between the mediator, one of the parties, and their attorneys. These two types of meetings help maintain progress towards a mutually agreeable resolution to the conflict.

Mediation is usually conducted by a single mediation. However, co-mediation or a panel of three mediators is not unheard of. During the initial session, the mediator has the opportunity to assess how to intervene. He also creates a comfortable environment for communication by inviting parties to participate and to share their thoughts and concerns. It is also during this session where the mediator establishes the purpose, structure, and guidelines of mediation with the participation of the parties. Consequently, throughout the session, he helps each party feel heard, respected, and acknowledged. He also identifies key issues that need to be addressed as well as the interests influencing these issues. He then proceeds to outline the issues and interests so that both parties can acknowledge them. All throughout the session, he creates an environment of safety and dignity by managing emotions, communication styles, and unproductive power dynamics and egos. He helps keep the process focused and forward moving as well as encourages risk taking. The mediator also facilitates an effective negotiation process by sorting out personal and emotional impasses and position obstacles. During the resolution process, the mediator encourages creativity and out-of-the-box ideas. He helps parties brainstorm solutions with each other by helping them think through their options. He does this by discussing how agreed resolutions can be implemented. The mediator also drafts a Resolution Agreement to be reviewed at a later time. After reviewing the Resolution Agreement, he finalizes it in writing which is signed by both parties. A mediator can also bring a new perspective to the problem. The skills he has can assist parties in exploring alternatives that they might not have previously considered.

Do I Need To Hire A Lawyer To Mediate?

Hiring a lawyer is a choice that is left to the parties to discuss among themselves. However, the role of the lawyer is limited to functioning as a resource person or as a consultant.

If I Don’t Bring A Lawyer Can I Bring Someone To Help Assist Me?

If there is no objection from either party, one or both may bring an assistant. The assistant’s function is to help you fully understand what is taking place, and what is being discussed in the mediation session. However, your representative may not speak for you. It is your duty to present your own ‘case’ clearly and define your position and interests.

If I Use Mediation, Will I Need To Go To Court?

If there is already a resolution brought about by mediation in property, financial, custody, parenting, and other issues, that the court has accepted, going to court will not be necessary. Nevertheless, it is better to consult with a lawyer regarding the requirements the Judicial System may impose

Must An Agreement Be Reached In Mediation?

The goal of mediation is to generate a mutually agreeable solution that comes as close as possible to a win-win agreement with minimal compromise. Nevertheless, no party can be forced to accept a resolution that does not coincide with his or her needs and interests. If no resolution arises, the parties may still go to court to resolve the disagreement.

Can A Mediator Be A Witness Or Talk To The Judge?

No. A mediator cannot be a witness or talk to anyone about the case. Additionally, both parties and their attorneys may not introduce into evidence what happened or did not happen during the mediation.

What Should I Know About A Mediator Before Choosing One?

When hiring a mediator, treat the endeavor just like you would hire any other professional. Speak with them and ask them about their training, experience and knowledge on the issues you have, and the fees they charge and how they are divided among the parties.

What Are The Advantages Of Mediation Over Litigation?

There are many advantages to choosing Mediation over Litigation.

• It provides timely resolutions. This is because the length of the mediation period depends on the capability of parties to come to an agreement or solution.
• It reduces the cost of litigation and other legal fees. Lawyers provide minimal support to the case. Furthermore, the emotional cost of filing a case is lessened in mediation.
• Privacy and confidentiality is of importance in mediation. No document or statement given or made during the process may be presented in court. What happens during mediation is a private affair.
• Relationships are preserved because of the collaborative nature of mediation.
• There is a reduction of court back-logs when disputants resort to mediation
• Mediation is a less intimidating process than litigation. This is because in mediation, the parties are allowed to freely express themselves without fear of being judged or interfered. There is also no cross examination which is emotionally taxing.
• The mediator has control over the proceedings. This entails trying to turn emotions such as anger into sympathy. This builds an atmosphere of cooperation between parties.
• In mediation, parties are free to express their interests with the goal of reaching a mutually agreeable solution that will answer to the needs of both parties.
• For the reason that mediation brings together people to discuss a mutually agreeable solution to their problem, there is limited compromising of legal rights.

How do I Get Started?

There are several international, national and local mediation organizations and associations. Some are non-profit and others are for-profit. For business matters, the first step is to have an Alternative Dispute Resolution clause in your written agreements and contracts that establish the procedures and structure for handling disputes. For personal and community matters, most agreements are simple and verbal. If there is no written or discussed agreement between parties on how to handle disagreements, please contact an ADR Professional, or you may contact the CoRe Group.