Mediation has become a viable alternative to traditional litigation. It brings the parties together in an environment separate from the competitive and adversarial courtroom and encourages collaboration and cooperation to solve an issue, perhaps in a creative way that could not be achieved by a jury or bench trial. The process is often cost-effective and can provide options where all parties benefit from the result. Mediation can be particularly helpful for disputes in which the relationships between the parties are important to preserve. Because of benefits like these, more courts and practitioners are recommending mediation to settle disputes. However, people often have questions about the efficacy of mediation and settlement—one of the most important being, “Does mediation actually work?” An understanding of the process and the benefits over litigation is vital to making an informed decision and preparing for mediation.
The Mediation Process
First, understanding the process can provide confidence in mediation as a tool. It is a process to resolve disputes by brainstorming mutually satisfactory solutions with a neutral third party. Mediation usually involves several steps to achieve a settlement. These steps are (1) the opening statement, (2) problem determination, (3) bargaining, and (4) the final agreement.
Opening Statement: The mediation will often begin with introductory remarks from the mediator. This takes place with both parties present in a welcoming and constructive environment. The mediator will present an opening statement to explain the process of the mediation, establish neutrality, and determine the roles of the parties in the process. Mediators will often identify their training and experience in this statement to help the parties feel comfortable with their leadership. Administrative matters, such as signing an agreement to participate, mediation guidelines, and a reminder of the confidentiality required in the process will be discussed at this time. The mediator will establish a schedule for the mediation and possibly describe what they have identified as the issue in the case.
The opening statement will also establish the rules governing the mediation. Often a mediator will require participants to agree to listen fully to the other participants and to allow complete statements without interruption. The participants will often agree to make a good-faith effort toward a settlement and be open to creative solutions. This statement is the only time in a mediation that the mediator is speaking for a long time. The rest of the mediation will involve more party participation, and the mediator will serve as a guide.
Problem Determination: Problem determination may involve several steps, depending on the complexity of the issue and the relationship between the parties. Usually, mediators will have the parties present their version of the facts and issues involved in the dispute as the first step. The statement is not about the truth of the issue, but rather about presenting the rationale behind each party’s hopes and opinions. This requires that each party listen fully without interrupting. The party who initiated the mediation will often present their statement first, followed by the other parties. It allows the parties to present the issues in the way they see them and to bring in the underlying interests that influence their decisions. If represented, lawyers may give a statement, but the parties will also be given a chance to speak.
The party statements are often accompanied by open-ended questions from the mediator and the parties to make sure that the conflict is fully understood. This will often involve the mediator reframing a statement from one party to allow the other participants to be receptive to the ideas presented. A mediator may also have the participants practice receptive listening, where they paraphrase each other’s statements to encourage understanding. The mediator will seek common issues between the parties and common ground upon which they can begin to discuss agreements. One goal of this process is to create rapport between the mediator and the parties, which can facilitate settlement later on.
Bargaining: Bargaining includes presentations of various solutions and discussions of the benefits and issues with each. This can take place with all parties in the same room or can involve the mediator separating the parties to learn more information and present plausible solutions, which is known as a caucus. The goal of this step is to identify the strengths and weaknesses of the suggestions and to give each party the chance to present solutions. This will continue until the parties come to an agreement or an impasse. An impasse results when the parties are unable to agree and the process is no longer constructive or likely to produce a settlement. If an impasse arises, the mediator will end the mediation and recommend further steps including arbitration or litigation.
Agreement: If the parties reach an agreement, the mediator will draw up an agreement and have it signed by the parties. If the parties are represented, counsel will have a chance to review the agreement, or if not represented, the parties will have a chance to review the agreement with outside counsel before signing. This gives the parties a chance to object to any aspect of the agreement, or to ask for clarification. Doing so ensures that parties leave empowered and confident that the agreement will achieve the desired outcome.
Strengths of the Mediation:
The mediation process includes several benefits that are not always present in traditional litigation or even arbitration. These benefits provide a different process that contributes to the success of mediation. The strengths of mediation include:
- Privacy and confidentiality. Litigation is usually public and court proceedings may be attended by anyone. Mediations are confidential and all parties are bound to that confidentiality. There is no public record, and anything discussed is barred from subsequent litigation by most evidence rules.
- Voluntary and non-binding: Mediation is completely voluntary and none of the parties are bound by a decision of the mediator. Parties are free to end the mediation, and the mediator cannot force an agreement. The mediator assists in a decision rather than deciding for the parties.
- Quick and cost-effective: Because the process is informal, it usually only takes a few days. Trials can last for months and the formalities often bar discussion of underlying interests and fears and can be expensive between attorney’s fees and the court fees. Mediation’s efficiency keeps costs down for the parties and is often more effective.
Often, participants in mediation have tried negotiations before mediation, believe that there is no path to settlement, have prepared for trial, or any combination of these factors. Yet mediations often in end in a settlement—usually more often than not. There are a few reasons why this tends to be the case.
- The presence of a third party is necessary to broker a settlement. Parties and attorneys often fear a reasonable settlement offer will create a roadblock for negotiation, set the bar for settlement too law, or give the other party a reason to believe that their argument is weak. The mediator provides a neutral and impartial space to present ideas. Mediators can control what each side hears from the other and filter inefficient and unnecessary information. This removes any gaps in negotiation skills and allows free discussion.
- Mediators have authority and rapport with the parties. The experience of most mediators makes them a perfect neutral. Mediators will often have litigation experience and will be able to draw from such when conversing with the parties. The rapport with the parties allows the mediator to present ideas that would not be accepted if a party heard them from the opposing party or attorney.
- Mediation is a dedicated process free of distractions and provides a litigation preview. Negotiations often take place amid normal schedules. However, mediation sets aside time to dedicate specifically to negotiating with the other party. The emotions and positions of the parties can be presented clearly, and it provides a taste of what litigation or arbitration would look like in the case. Parties also have the opportunity to see how their options would stand up in litigation and arbitration without binding themselves to a decision.
- Parties will often test settlements with the mediator. The presence of a third party provides a test for settlement offers without giving the offer straight to the other party. Mediators cannot convey these offers without permission; but because they hear both sides, mediators can see if a settlement will be possible or if an offer is reasonable in the mediation.
- Mediation offers control and choices not available in traditional routes. Mediation allows parties to come up with creative solutions to the issues. In authoritative venues, a party will be bound to a determination of who wins and who loses. Mediation offers a chance for both parties to win. Mediators can help the parties come up with ideas based on what each party needs.
- Mediation provides a final agreement. Parties are often willing to settle in mediation because it provides a sure and final end to a dispute. If the dispute continues to trial, the parties are unsure of who will win and what the judgment will be. Mediation allows the parties to walk away with confidence in the next phase of life after the dispute.
Mediation provides strengths and benefits that help to settle a case while avoiding litigation. The process gives the parties autonomy and choice while allowing for creative and empathetic responses. Mediation grants certainty and stability to the parties, who may have been living without such stability for quite some time. To answer the question posed at the beginning—yes, mediation works, and it is effective to produce a satisfactory settlement.