The mediation process provides a unique opportunity to resolve a dispute that might otherwise be litigated. Mediation involves a voluntary agreement of disputants to use an impartial neutral third party to assist them in a mutually acceptable resolution of their conflict. It is a faster and more cost effective alternative to a trial. It may also provide for a more constructive working relationship between the parties after the matter is settled. Litigation destroys business relationships and, in many cases, is even more costly and time consuming than the mediation process.
In the mediation process, disputants meet with a mediator (who may be an attorney or not) who listens to each side of the dispute and attempts to bring the disputants together in a mutually acceptable way to resolve their issues. The mediation may be conducted in person, by telephone, or online, depending upon the circumstances of the case and the availability of the mediator and disputants.
Mediation sessions usually begin with a brief statement from each disputant describing what they consider to be the core issue in their dispute and why it is important to them. The disputant who initiated the mediation usually makes this statement first, followed by the other disputants. The statement is not a recital of facts, but rather an attempt by the disputant to frame the issue in their mind and communicate this to the mediator so that the mediator will be able to understand the dispute from the disputants’ perspective. The statements should be made without interruption by the mediator or by others present.
Once the disputants have each provided their opening statements, the mediator will often set the ground rules for the mediation by stating what is and is not appropriate in the mediation session. He or she will then explain the role of the mediator in the process. The mediator will usually ask that if attorneys are attending, that they confer privately with their clients, and that the clients speak for themselves in order to give each of them an opportunity to tell their side of the story without interference from others.
The next step is for the mediator to help the disputants identify the problems that need to be resolved in their dispute. The mediator will use various techniques to facilitate the identification of problems including brainstorming sessions, developing hypothetical plausible scenarios, or using the mediators proposal approach wherein the mediator will make a proposal and the disputants take turns modifying that proposal until it meets with everyone’s satisfaction.
Once the disputants have identified the problems, they will begin to bargain and generate options in their dispute. The mediator will again use a variety of tools to facilitate the negotiation and ultimately reach a negotiated settlement that will resolve the dispute. The final result of the mediation will typically be a written agreement signed by the disputants that contains all the terms and conditions of the settlement. The mediator will then notify the appropriate individuals of the result of the mediation. mediation process