Mediation is an alternative to litigation where a neutral person (called a mediator) helps people involved in a dispute find solutions that meet their needs. The mediator is trained to listen and not judge, but can offer suggestions, provide a structure for discussion, help parties focus on the issues, manage interaction between the parties, facilitate resolution and serve as an evaluator by analysing the case (reality-testing) and assessing the strengths and weaknesses of each side’s position. Mediators are not required to have any particular qualifications but are usually lawyers, social workers, psychologists, nurses or other mental health professionals with training in conflict resolution techniques.
When a lawsuit is filed, the court assigns the matter to a mediator for the purpose of attempting to settle the dispute outside of trial. In addition, individuals, agencies and companies may choose to use mediation as a way to settle disputes. Mediation can often be completed more quickly and cost-effectively than litigation. It also allows for more flexibility than a trial and can save the parties emotional, financial and physical costs.
A mediation session starts with the mediator introducing themselves and explaining their role in the process. Then each party is invited to describe their dispute in opening statements. This can be a difficult part of the mediation because the disputants are often angry and blaming each other for problems they have.
After the opening statements, the mediator will generally go between the rooms to have private meetings with each side called caucuses. These private meetings are where the real negotiation takes place. The mediator will ask questions and make suggestions to help the disputants reach a settlement agreement. They will assess the strength of each position, challenge ideas, help the parties come up with new ways to look at the issue, and make reference points to consider.
The mediator will continue the caucuses until they feel the time has been spent or when they are unable to reach a resolution. Then they will bring the parties back together for joint negotiations.
During the mediation, it is important that both parties speak with honesty and integrity. It is helpful to be able to articulate what is important to them and to listen to the other party’s concerns and interests. A successful outcome to the dispute depends on both parties being willing to compromise and not just take what they want.
Once a settlement is reached, the mediator will draft an agreement and send copies to both sides for review. Then the parties can sign the agreement and it becomes enforceable. While this isn’t always easy, the mediation process can help avoid some of the negative effects of litigation that can impact relationships and families, work performance, children’s well-being and overall health.