When you see articles about mediation, or hear attorneys talk about it, you would think that mediation is a new idea. However, there are references to it in the Bible and other ancient texts, in the west and in the east. In other words, it is really an ancient idea that has been re-discovered.
Mediation involves parties in conflict (two or more) meeting with one or more neutral parties for the purpose of resolving the conflict. It is voluntary, meaning that the mediation never produces a result unless at least two of the parties agree to it. If there are other parties who are not in agreement, those parties are not bound by the agreement.
Some courts sponsored programs are called “mandatory mediation.” In a sense, the term is an oxymoron. In these programs, the court requires the parties to a lawsuit to participate in a mediation, and may even require them to participate in good faith. However, the court cannot and does not require the parties to reach agreement. Thus, even these “mandatory” programs remain voluntary.
There are no licensing requirements for mediators. In other words, anyone can call him- or herself a mediator. Mediators can be attorneys, psychologists, social workers, accountants, teachers or experienced members of particular industrial sectors, such as construction. Most mediation programs sponsored by courts or other institutions require mediators to have formal training. There are mediation training programs at colleges and universities. Courts and bar associations frequently sponsor mediation training. Recognized mediation training has gotten longer over the years. Now, a typical program is 40 hours or more. (I have to say that the mediation training I’ve taken were some of the best courses I have ever taken.)
The hallmark of mediation is that it is a lot more flexible than litigation. In court, we are always talking about a winner and a loser. Mediation is concerned with resolving a dispute. It is possible, in mediation, to have a win-win solution.
Mediation can handle disputes which are not recognized as legitimate claims in court. Any type of dispute can be mediated. Thus, we see mediation being used in schools to resolve conflicts between students. It can just as easily be used to resolve conflicts between neighbors or employees.
It is also a lot more flexible as to remedy. In court, the judge is often very limited with respect to what can be awarded to the winner. Often, the only remedy a judge or jury can award is a sum of money as damages. Although a mediated settlement of a dispute can certainly involve the exchange of money, it doesn’t have to. In fact, about the only limitation as to how a mediation can resolve a dispute is the imagination and willingness of the parties.
The statistics show that mediation has a very high success rate. That is, most disputes submitted to mediation get resolved as a direct result of the mediation. In my experience, even those mediations that do not result in an agreement end up being settling anyway. The mediation may cause the parties to re-think their positions, and may result in the parties resolving their dispute sometime after the mediation.
There are many different styles of mediation. One example is the settlement conference, where the primary aim is to get the matter settled. These are often conducted by former judges, and involve a lot of arm twisting and cajoling. Another example is the evaluative mediation, in which the mediator listens to the positions of all the parties, and then offers a confidential evaluation of the strength and weaknesses of the position of each party. My preference is facilitative mediation, in which the task of the mediator is the help the parties understand the nature of their conflict (what’s really going on here) and their own and the other parties’s positions (what you want and what they may want), and find a set of understandings that will help the parties resolve their conflicts. Sometimes, the process of mediation is the solution the parties need because all the parties really wanted was to fully air their concerns and have the other party hear those concerns. Once that is done, there may be not much more to do.
Despite the different styles, all mediations seem to follow a definite pattern. In many, but not all, mediations, the parties may submit pre-mediation statements, outlining their positions, and perhaps addressing difficulties that each party may envision in the process. These are usually submitted only to the mediator, without any need to share the statement with the other party. At the mediation, in a joint session, that is, a session where all parties are present, the mediator introduces him- or herself, and generally describes the process (that is, lay out what I am about to describe). Then the mediator allows each party to talk. The important thing here is that each party is allowed to talk without being disturbed. The mediator often needs to assure the other parties that they will be given the same opportunity. Once this is done, the mediator will start asking questions, in an attempt to get the parties to speak with one another. In many mediations, the parties might break into caucuses, with the mediator meeting privately with each party, going back and forth as needed. The parties may go back and forth between caucus and joint session, or they may stay in caucus for the rest of the mediation. It all depends on what the mediator believes will be helpful under the prevailing circumstances. Some mediations never go into caucus. Others may be conducted entirely in caucus.
The objective of mediation is to get the parties to enter into an agreement. The agreement is a contract that can be enforce in court, if necessary. However, because the parties themselves were the ones who developed the terms of the contract, mediation agreements are rarely the subject of litigation..