The U.S. Department of Health and Human Services defines mediation as a form of assisted negotiation. In mediation, a trained, neutral third party enables two or more parties to negotiate to resolve their dispute.
Mediation generally employs a problem-solving approach to resolving conflict rather than the traditional, adversarial approach. Mediators are trained in communication, and problem-solving skills, which they employ to assist parties make the best possible decisions about resolving their dispute.
Mediation is a voluntary and informal process. The rules of evidence do not apply, and testimony is not taken. Mediation permits parties to control the dispute resolution process instead of having a judge or official control it. Mediation is usually faster and more economical than adjudication. Even if mediation does not resolve the dispute, it assists the parties in clarifying and narrowing the issues so that adjudication can proceed more swiftly.
It is important to note that mediators are not decision-makers or judges and have no personal interest in the substantive outcome of a case. Mediators use their expertise in communication and negotiation to guide the parties to make effective, informed decisions for themselves.
What Does the Mediation Process Look Like?
Conceptually, mediation includes three general phases, and here is a brief overview of them. As part of the process, the mediator creates a safe environment where the parties can discuss difficult topics. Depending on the parties’ experience with mediation, the mediator may provide a process overview: the role of the mediator, what will occur in various mediation sessions, and confidentiality.
During this phase, parties may concede ground rules for the conduct of the mediation and a general timetable for the process. This phase includes a joint session among parties, during which each party can voice their views and desired outcomes.
Next, during the problem-solving stage, the mediator assists the parties in focusing principally on issues, interests, options for resolution, and criteria for analyzing the options. Parties can meet separately with the mediator to share confidences and consider options in private. Lastly, during the final phases, parties decide what terms to resolve in the dispute.
The mediator may assist in drafting a document that reflects any commitments they need to make. If needed, the agreement may be passed on to others for approval, and the mediator and the parties will review the process for finalizing the agreement. If parties do not come to a consensus, the mediator ensures they understand the next steps available to them.
When Should You Request Mediation?
Mediation is an appropriate option for any dispute where a negotiated solution is an acceptable outcome to the parties. This includes conflicts within agencies and with regulated parties, states, contractors, and other private persons.
Mediation is beneficial in the following situations where:
- There is no need to establish precedent, and there is no single solution that is required;
- Tensions, emotions, or transaction costs are running high;
- Communication between the parties has broken down;
- Time is a factor;
- Failure to agree does not benefit one or more parties;
- Parties have an interest in maintaining confidentiality and;
- The parties want or need to maintain some ongoing relationship.
What are the Advantages of Using a Mediator?
According to the U.S Department of Health and Human Services, there are several advantages to using a mediator. First, it increases information flow, and parties to a dispute are often reluctant to share information. This dynamic may lead to decisions being made without considering critical factors. A mediator helps parties recognize a complete understanding of relevant information, ultimately enabling them to make better decisions.
Moreover, a mediator encourages each party to understand and consider the other’s perspective. Parties in dispute tend to discount, or miss aspects said by the other. A mediator can help to ensure that vital information is not overlooked. Parties are more likely to create a shared understanding of their issues, concerns, and interests with the assistance of a mediator.
Additionally, mediators are trained in communication and problem-solving skills, which can benefit parties by “separating the people from the problem.” This can assist parties in reviewing difficult topics without sacrificing critical relationships.
Who is the Mediator?
The mediator is a volunteer who has been professionally trained to assist you in finding a solution to your conflict. They will:
- Listen as you clarify the issue of concern;
- Inquire about any questions to help you and the other parties understand the issues;
- Guide you through a process to develop solutions;
- Assist you in crafting an agreement that is satisfactory to both parties;
- The mediator will not take sides, make judgments, assess blame, or tell you what to do. The mediator will not force you to make decisions and;
- The mediator facilitates the conversation between the parties. You, the parties, will create the agreement.
The agreement summarizes the resolutions you and the other person(s) have decided on to solve your dispute. Typically, a copy of the agreement ends the mediation process. It is important to note that the agreement may be a legally binding document.
What are the Rights and Obligations of Each Party?
Many counties describe the mediation process as being strictly confidential except in cases where the mediation determines that child abuse or pending criminal activity is involved.
The key aspect is that no information received by the mediator during the mediation process shall be revealed to parties outside the mediation process. Mediation is entirely voluntary; each party has the right to withdraw from the mediation process at any time. Should the mediation process generate an agreement signed by the parties, that agreement can be formal and binding upon the parties.
In addition to the advantages mentioned earlier, here are a few more:
- Informal: The process is informal and flexible; attorneys are not necessary. There are no formal rules of evidence and no witnesses.
- Confidential: Mediation is a confidential process. The mediators will not disclose any information revealed during the mediation. The sessions are not tape-recorded or transcribed. After the mediation, mediators destroy any notes taken during the mediation session and;
- Quick and Inexpensive: Mediation is an option to consider when parties need to get on with their business and their lives. Mediation usually takes less time to complete, allowing for an earlier solution than is possible through investigation.
Why Choose Mediation?
There is a greater degree of party control with mediation. Parties who negotiate their settlements have more control over the outcome of their dispute. Parties have an equal say in the process. There is no determination of fault; instead, the parties reach a mutually agreeable resolution to their conflict.
Furthermore, many disputes happen in the context of ongoing work relationships. Mediated settlements that address all parties’ interests preserve working relationships in ways that would not be feasible in a win-or-lose decision-making procedure. Also, mediation can make the termination of a working relationship more amicable.
Parties are typically more satisfied with solutions they have had a hand in creating, as opposed to solutions imposed by a third-party decision-maker. Mediated agreements often resolve procedural and interpersonal issues that are not necessarily accessible to legal determination. The parties may tailor their settlement to their particular situation and follow the implementation details. After a mediation resolution, if a subsequent dispute happens, parties are more likely to utilize a cooperative forum of problem-solving to settle their differences than to pursue an adversarial approach.
When Do I Need To Contact a Lawyer?
If you want to start the mediation process, it is highly recommended to reach out to a local family law attorney to understand the basics of the process and how to proceed further. Your attorney can advise you of your legal rights and options.