CENTER FOR DISPUTE RESOLUTION
children, etc.) and do not want that relationship destroyed by the adversarial process of trial. In addition to being less adversarial than trial or arbitration, mediation tends to be less expensive, faster, and non-binding.
Mediation also may be used as a pre-trial initiative to provide a way for litigating parties to gauge the relative strengths and weaknesses of their claims and defenses before they get to the point of trial. This does not mean that mediation is used as a practice trial; rather, it represents a joint effort in good faith to resolve the matter before it gets to trial. In this form of mediation, after parties consider all sides to the dispute, a recommendation for settlement is given to the parties for their consideration. If the parties are unwilling to compromise their respective positions, and no settlement of the dispute results, at least the mediation experience will have given them a better understanding of how the dispute may or may not play out in court.
Mediation of a dispute may occur as a result of voluntary private agreement, or court order. The term “mandatory mediation” may be misleading. It merely means that the parties are “forced to the table” to try to resolve their dispute prior to trial. It does not mean that they are required to settle their dispute; it merely requires that they attempt to do so in good faith. The decision to accept the outcome of the mediation and settle the matter remains voluntary. If the attempt at mediation fails to resolve the dispute, the parties may continue to litigate the matter.
A voluntary agreement to mediate a dispute may pre-exist the dispute, as in a private contract provision in which the parties agree to mediate any dispute that may arise in the future. Alternatively, a decision to mediate may come about after a dispute has already occurred and the parties are merely considering a way to resolve the matter without going to court.
Unlike arbitration, mediation is not similar to a trial. In voluntary mediation, there is no “decision”, judgment, or verdict rendered. Rather, the neutral mediator acts as a go-between and does not take sides or advocate the cause or defense of any party. The setting is more often informal than not, and the parties may or may not be represented by attorneys (usually, court-ordered mediations are handled by the attorneys representing the parties).
The mediation hearing itself differs substantially from a trial, in that there is generally no formal presentation of evidence, and generally no witness testimony. Rather, each party summarizes its position in written papers filed with the mediator(s) prior to the mediation. In the written summary, each party describes the evidence it intends to produce at trial, if mediation is unsuccessful. The mediation papers may include photographs, affidavits from witnesses who will appear at trial, formal opinions or reports from experts, etc. There is a summarized statement of the issues and the respective positions of the parties, as well as factual/legal arguments identifying the strengths and weaknesses of the opposing position(s). The mediator(s) will review the premediation documents in order to become familiar with the issues and arguments, and thus be able to facilitate settlement. It is important that mediations are kept confidential, either by express agreement or by law, so as not to affect trial of the matter if mediation is unsuccessful.
Most often, there is a single, neutral mediator who facilitates and encourages open discussion and negotiation between the parties. However, in some cases a panel of mediators may be selected. When different perspectives can be helpful, the mediators may also have an entirely different background (“co-mediation”), e.g. they can be from different countries in international disputes, or they can have a legal and non-legal background, or speak different languages, etc.
Source: adapted by CEDIRES from Encyclopedia of Everyday Law, ©2003 Gale Cengage. All Rights Reserved.
Table of Contents
What is mediation?
Characteristics of a mediation
How to use mediation
Concerns about mediation
Advantages of mediation
Disadvantages of mediation
Appendix A: Checklist for mediation
I. What is mediation?
Simply put, mediation is negotiation between disputing parties, assisted by a neutral. While the mediator is not empowered to impose a settlement, the mediator’s presence alters the dynamics of the negotiation and often helps shape the final settlement. Mediation has been defined as “the intervention into a dispute or negotiation by an acceptable, impartial and neutral third party who has no decision making power, to assist disputing parties in voluntarily reaching their own mutually acceptable settlement of issues in dispute.” (Canadian Bar Association, Task Force Report on ADR in Canada, 1989, 15).
Successful mediations result in a signed agreement or contract which prescribes the future behavior of the parties; this is often called a memorandum of understanding. Such an agreement has the force of a contract and, when signed, becomes binding.
II. Characteristics of a mediation
o Voluntary: No party is forced to use a mediator, nor are they forced to agree to a particular settlement.
o Non-Coercive: The mediator does not decide for the parties, but helps them make their own decision.
o Assisted Negotiation: The mediator’s role is to be an impartial third party who helps the parties reach a fair and mutually acceptable settlement. The mediator may provide relationship-building and procedural assistance. Moreover, the mediator may also provide substantive options to the parties.
o Informal: The proceedings of a mediation are more relaxed and informal than those of a court or an arbitration. There are no prescribed rules of procedure and few rules other than those agreed to by the parties themselves.
Confidential: Generally, mediation is described as a confidential process. It is up to the parties to jointly establish any limits. If it is decided that the mediation should be confidential, the parties and the mediator should sign a clause to that effect.
III. How to use mediation
Objective of a Mediation
Conducted properly, mediation can allow all parties involved to move away from legal concepts such as fault and instead, allow for a sharing of people’s perceptions and experiences and a determination of each party’s actual needs and interests. Such an outcome can often do more to truly resolve the problems or perceived problems which led to the dispute than any formal hearing.
During a mediation, both the parties and the mediator have certain responsibilities. The parties must attend, as requested, all mediation sessions and participate in the process in good faith. The mediator should remain dispassionate and avoid becoming partial to one party or view. Further, if expressly agreed, all statements and disclosures made and information and documents provided to the mediator are confidential.
Preparing for a Mediation
The choice to go to mediation rests with the parties, all of whom must agree to attend.
The parties must mutually select a mediator, either through referrals or directly.
The mediation agreement should be drafted, laying out a number of critical items, including, but not limited to:
the logistics of the mediation
the cost-sharing arrangement (normally 50/50)
the mandate of the mediator
whether the mediation will be confidential or of public record
how disclosure would operate – in advance or as required by mediator
the use of subsequent processes if mediation is unsuccessful
the possibility of co-mediation
remuneration for the mediator.
Steps of a Mediation
Although the actual mediation process may vary depending on the degree to which positions have hardened, the personalities of the people involved and the complexity of the issues, at root, successful mediations generally involve a series of five mandatory tasks:
Agreeing to mediate
Understanding the problem(s)
Mediation refers to one of several methods used to resolve legal disputes other than through formal court trial. Mediation and arbitration constitute methods of “alternative dispute resolution” (ADR). Arbitration is used as a substitute for trial, but mediation merely assists the parties in reaching their own resolution of a disputed matter. Instead of a judge or jury rendering a judgment or verdict, or an arbitrator rendering a binding decision, a mediator merely facilitates open discussion and tries to assist the parties in resolving their differences on their own.
Those who go through formal mediation tend to achieve settlement through their own spirit of mutual compromise.
For that reason, mediation may be particularly helpful or appropriate in situations where parties have an ongoing relationship (neighbors, business associates, divorcing parents of minor
Center for Dispute Resolution