Mediation is a process where parties, with the help of a mediator, come together and resolve their own disputes. The mediator is a neutral party who facilitates the discussions between the parties. The mediator does not take sides; nor does he or she act as a judge, lawyer, therapist, or counselor. By creating a safe and respectful environment where parties can listen to each other, and be heard by each other, the mediator assists the parties to gain a clearer mutual understanding of their situation. The goal in mediation is for the parties, themselves, to create a solution together, that works for each of them.
Parties in disagreement often find themselves “stuck” by seeing only one possible way to resolve a dispute. Through the process of mediation, parties will inevitably gain a greater understanding of each other’s positions. The mediator also may provide valuable assistance in helping parties discuss possible alternative options where the needs of all the parties may be met. In a Court setting the parties are adversaries; but in mediation the parties agree to become partners with the goal of reaching a fair and durable resolution.
Often, some of the significant issues at the heart of disputes are not legal issues. Parties are often encouraged by their attorneys to seek mediation services for at least some aspects of a dispute. Mediation is less expensive and less formal than seeking resolution through a lawsuit. The parties know better than anyone the emotional and factual components of their dispute, and they are often capable, with guidance, to resolve them. In cases where
parties will live or work closely with each other after the dispute is resolved, mediation usually improves continuing communication and relationships.
Mediation is both voluntary and confidential. Each party consents to come together with thegoal and objective of resolving the dispute. They may leave the mediation at any time. All discussions are confidential. Both the mediator and the parties agree to not discuss outside of the mediation, what transpires during the mediation. This confidentiality can create an atmosphere for a free exchange of feelings and ideas.
Written agreements reached in mediation are legally binding and will be looked at by Courts as personal contracts. For this reason, parties are encouraged to agree only to what they are willing to carry out. Often, in mediations dealing with property settlements, I recommend that clients have their agreements reviewed by their attorneys.
The vast majority of mediations are conducted directly, in one room, face to face. There may be a time during the mediation, where the mediator feels a private meeting with one of the parties is necessary. If so, the other party will also be given the opportunity to meet privately with the mediator. In certain cases, the parties may be situated in separate spaces and the mediator will shuttle back and forth between the parties. If necessitated by the complexity of the issues, two mediators may conduct a co-mediation.