Mediation is often referred to as a form of “alternative dispute resolution,” or “ADR.” Today, however, mediation is very mainstream. All litigated disputes reach an outcome one way or another, but these days more are resolved through mediation than with court-imposed outcomes. Yet mediation is still an “alternative” to the traditional court system, and so the term “ADR” lives on.
One of the benefits of mediation is that it can bring closure to a dispute far more quickly than continued litigation. It can also save a lot of money in attorney fees. But perhaps the greatest benefit is that it empowers parties to control the outcome. Mediation gives parties the opportunity to decide for themselves how a case will be resolved, rather than having strangers — judges or jurors — make the decision for them.
Mediation also provides for a resolution that can enable the parties to co-exist going forward. In some cases, the parties need not have anything further to do with each other no matter how a case ends. But in many, co-existence is essential or, at least, highly desirable. That includes family law cases where children are involved. And probate cases where family members have been involved in a dispute, and where they will continue to be part of the same family after it is resolved. It can also include some business disputes where, notwithstanding a dispute, there are common interests. And, of course, it includes neighbor disputes. Even if a mediated outcome will not immediately heal existing wounds, it lays the ground for moving on more effectively than litigation where parties fight for an outcome with an eventual “winner” and “loser.”
Mediation also allows for hedging bets. As strongly as people may feel about their case, litigation is inherently an uncertain process. The outcome can be very different from what a party expects. Often, neither side ends up satisfied with a litigated outcome.
Some people see mediation as being about reaching a “compromise.” But that word misses the mark. Yes, mediation involves negotiations. But mediation is really about reaching a good resolution for the parties given the circumstances they are in. The goal of a mediation is to identify a resolution that is better for both sides than continued litigation.
Some courts order the parties to mediate. But mediation is generally a voluntary process. And if you do mediate, you don’t have to reach an agreement. You can resume the litigation battle.
People who are new to mediation sometimes confuse it with “arbitration,” which is another form of “alternative dispute resolution.” But the two processes are very different. An arbitrator imposes a decision, in much the same way as a judge does — except in a private proceeding outside of the court system. And, usually, that decision is binding on the parties under their agreement to arbitrate. But a mediator does not impose any outcomes. Rather, a mediator works with the parties to try to reach an agreement about how to resolve a dispute.
If you are new to mediation, you may be wondering exactly what it entails. No two mediations are the same. But typically, an in-person mediation takes place at a location where each side has its own room. Sometimes, the two sides meet at some point during the day in a joint session with the mediator. But mediation mostly involves the mediator spending time with the parties and their lawyers in separate sessions of varying lengths, listening to what they have to say and gradually exploring possible resolutions. It is the mediator’s role to create a safe space for the parties to engage in a process that is very different from what takes place in a courtroom.
This can take place over several hours or a full day. Some mediations go into a second day. But the process actually begins even before the “first” day, as — in order to be fully prepared — effective mediators want to review written briefing ahead of time and speak informally with the lawyers and maybe the parties as well.
Zoom mediations can recreate all of the above, with “virtual breakout rooms” for the different sides and the mediator being able to move between them (as well as sometimes gathering everyone together in a joint session or meeting just with the lawyers in a separate breakout room).
A mediator is often a lawyer, but the mediator is not acting as a lawyer for either side. The mediator is neutral.
Mediation is a confidential process. Nothing communicated in a mediation can be used in the continuing litigation if the case does not settle. And if a party tells the mediator something in a separate session — without the other side present — the mediator cannot share that without permission. These rules of confidentiality are sacrosanct and are an important reason why mediation can be so effective. Confidentiality allows the parties to try on ideas and explore outcomes without fearing they are somehow giving something up if no settlement is reached.
If the parties agree on a resolution, they then enter into a written settlement agreement, often before leaving the mediation. Assuming the settlement has been drafted properly, it is binding on the parties. That means it can be enforced in court. So while the process leading up to a settlement is entirely voluntary, a mediated resolution — once reached — is as certain and firm an outcome as one imposed by a court.
© 2024 John Derrick