What is Mediation? Understanding the ADR Process

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What is mediation

What is mediation? Mediation is an alternative dispute resolution process that uses a trained, neutral third party to assist two conflicting parties into mutually acceptable solutions. Mediation has become a popular option for resolving disputes. It helps take the disputing parties outside of court proceedings and into a space to focus on finding a mutually satisfactory settlement agreement. However, for people who have not experienced or studied mediation, it can be a confusing process to encounter, and they may wonder just what is mediation.

This article will outline the goals of mediation, the role of the mediator, the mediation process, special types of mediation, and why mediation may be a good option for a dispute. The goal of this article is to help you understand the process and determine if mediation may be an option in your dispute.

The Concept of Mediation

Mediation was designed as a way to bring the parties together for discussions and negotiation that can help identify common ground and potentially lead to a settlement for the case. Unlike a court proceeding or a trial, mediation gives the parties control over the outcome of the case and lets them decide how they would like it resolved, whether the parties agree on a settlement or agree to move forward with other dispute resolution techniques.

It functions like a guided negotiation, in which both sides have the opportunity to speak with a neutral person, known as the mediator. The mediator helps the parties identify interests and possible solutions while ensuring that the participants are focused on the case at hand and what they need to resolve. It is less formal and more collaborative than other forms of dispute resolution, such as litigation or arbitration., which may help the parties keep their relationship with the other party despite the issues they face.

Mediation exists to help the parties find creative solutions to their problems that would not be possible if it were decided by a judge.

There are several types of special programs for mediation. Particularly common ones are family law mediation and criminal court programs. Family law mediation helps couples divorce or determine custody. Criminal court programs will help parties involved in minor crimes remedy the situation without judicial intervention.

The Role of the Mediator

The mediator has a large role in helping each party identify and ask for what they need out of the mediation session, yet they do not have a direct impact on the outcome of the dispute or can decide for the parties, unlike litigation and arbitration. Mediators function as a neutral third party, meaning that they are not connected to either party nor do they have any vested interest in the way the dispute is resolved. They can see the whole dispute and guide the parties through the negotiation and toward a resolution.

A mediator may have some knowledge of the area of law that the parties are disputing over, which can help them work with the conflict without needing to learn all the jargon and difficult substance. A mediator helps the parties sift through all the things that are affecting their decision to focus on what the person needs at the moment.

A mediator will also have their style of mediation and how they guide the parties. Some will take on an evaluative role, helping the parties identify their strengths and weaknesses and move toward the best solution based on their interest. Other mediators will be collaborative or facilitative. This means that they will guide the parties toward a resolution without offering opinions or encouraging a certain outcome. This is the more common type of mediator, but either kind may help resolve the right dispute.

The Mediation Process

This process involves several stages the parties and mediator will move through on their way to an agreement. The two critical stages of the mediation process are the agreement to mediate and the mediation session itself.

Mediation Agreements

Mediation is a voluntary process, meaning that one party cannot force the other party to join mediation proceedings if they do not wish to in most cases. This means that the parties must agree to mediate a case before they can begin the mediation process. Most of the time, the option to mediate is met with positive feedback, especially given the opportunity to resolve the dispute quickly and in a mutually agreeable way. Occasionally. courts will order mediation, but this is only in certain cases.

Assigning the Mediator

Once the parties have an agreement, they can choose their neutral third party and begin the process. Mediators are frequently assigned by an organization, but the parties may choose a mediator that they like or have worked with before. Then the mediator will disclose any potential conflicts or issues with them remaining a neutral third party, if any. Once the parties have agreed to the mediator, the mediation process can fully begin.

Mediation Session

The mediation session itself will be governed by the relationship between the parties, the mediator’s style, and the complexity of the issue at hand. It can last a few hours to multiple days depending on the progress made and the will of the parties. The role of an attorney or two may also affect the duration and flow of the mediation process as well.

Most mediators will begin the mediation with a joint session between the parties. In this session, the mediator will outline the rules and guidelines for the process, and then each party will have the opportunity to present their view of the situation. Then it is common for the mediator to separate the parties and get a feel for how they wish to decide the case and what interests will affect the settlement.

The mediator will often move between all the parties and may choose to focus on only one of the disputes at a time if there are many to help move the parties toward settlement of some of the disputes. The mediator may choose to bring the parties back to a joint session if they feel it will help move the negotiation forward. If the parties reach an agreement or decide to end mediation, the mediator will record this in an agreement for the disputing parties to sign.

Reasons to Consider Mediation

If you are considering whether mediation is for you, there are several reasons why it might be for your case. First, it can help save time. Mediation can resolve a case within a few days once the mediation session begins. This helps save money as well, as attorney fees and court costs can add up quickly.

Second, mediation allows the parties to control the outcome. When you use litigation, the judge or jury will be the one to decide the case. All you can do is present what you have to the court and let them determine how to settle the disputes. Additionally, they cannot consider the interests that affect the issue like mediation can.

Finally, mediation allows you to pursue creative solutions that are not available through litigation or the courts. Judges may only choose a winner and loser based on the law, while mediation allows you the opportunity to find a mutually satisfactory settlement that would not be possible elsewhere.

Final Thoughts

In mediation, the overall decision making and authority rests entirely with the two opposing parties. The mediator only acts as a facilitator, guiding the parties in identifying issues, engaging in joint problem-solving, and exploring creative settlement alternatives.

Although mediation is voluntary and non-binding, it has a strikingly high settlement rate. Parties are typically more satisfied with a mediated resolution, rather than one imposed upon them by a judge or a court settlement because created the solution themselves.

To get a better understanding of what mediation is or other alternative dispute resolution processes, contact ADR Times today!

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Emily Holland
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