What is Mediation, in the Legal Sense?

Mediation is a voluntary, private and informal dispute resolution process in which a neutral third person, or the mediator, acts as a facilitator to assist in resolving a dispute between two or more parties. Mediation is both a cost-effective and an efficient vehicle to help parties reach a resolution to a dispute before spending thousands of dollars in attorneys' fees in litigation or in the preparation for trial. In fact, mediation has been so successful in the settlement of litigation disputes, many states require mandatory mediation before any suit progresses to trial.

Mediation may be commenced before, during or even after litigation proceedings. Moreover, parties may mediate any kind of dispute between them from business disputes to family disputes, such as divorce or child custody matters. Mediation is non-binding, or in other words, the mediator does not have the power to force a decision on the parties. Therefore, whether a dispute settles at mediation is wholly dependent upon the parties themselves reaching a satisfactory resolution to the matter. The role of the mediator is to simply facilitate communication between the parties in an effort to have them focus on the real issues at hand and to generate settlement options. Importantly, all communications with the mediator and settlement offers made at mediation are strictly confidential and cannot be introduced at trial should the dispute fail to settle.

Under typical mediation procedure, both sides initially meet in the same room. During this meeting, the mediator will explain the rules of mediation and how the mediation will be conducted. At this stage, the attorneys or even the parties will have the opportunity to make an informal opening statement relaying their position concerning the dispute. After the initial meeting, the parties will then break off into caucus, or the process where the mediator will meet with each side separately in different rooms. This stage of the mediation is the heart of negotiations at mediation. During this time, the mediator will go back and forth between the rooms, spending as much time in each room as necessary, in an effort to reach a resolution. The mediator, who is a neutral person and is often a lawyer or former judge, may help both sides evaluate the strengths and weaknesses in their positions in order to help achieve a resolution.

Finding a mediator to assist you with your dispute is not difficult because many services, such as JAMS (http://www.jamsadr.com/) are available, and many local lawyers or retired judges act as mediators. Further, with respect to family law disputes, many mediation services specialize in such matters. Mediation usually lasts a half-day to a day, but can go for multiple days as necessary. Next time you have a serious dispute that you fear will turn into litigation, or a dispute that already has become litigation, remember the mediation process as an alternative to assist in resolving the matter in an informal and cost-effective fashion.