Mediation is an informal process in which a neutral third party assists the parties in a dispute to reach their own resolution. This neutral third party, or mediator, differs from a judge or arbitrator in that he or she does not impose a solution on the parties. Given that the parties work together to resolve the dispute, mediation should be a co-operative process rather than combative as it is within the traditional court process. As a result, mediation may assist in preserving the relationship between the parties that may be destroyed through litigation. Further, since mediation is a private process, concerns over litigation publicity should not arise.
In order to mediate, it is not required that the parties have already begun resolving the dispute through litigation. Mediation, in general, is less costly and more time efficient than litigation. It should be noted that while a resolution may be reached by the parties, it is not binding unless it is included within a settlement agreement.
While there are significant benefits to mediation, it is only appropriate for those parties who are interested in listening to the other's point of view. Also, there are some circumstances where mediation is not appropriate. For example, where there is a significant power imbalance between the disputing parties or if one party has been victimized by the other, working together to resolve the dispute carries significant potential to further the imbalance or victimization.
The role of the mediator is to control and facilitate the mediation process, but not the actual substance of any agreement that is reached. Should communication break down between the parties, the mediator will assist in removing the communication barriers and attempt to get the parties back to discussing the issues in a more productive manner. The mediator will intervene to help the parties narrow the issues in the dispute, uncover underlying interests and help generate alternative options as to how the dispute can be resolved. The mediator will try to ensure that any resolution to the dispute is reached by the parties freely, voluntarily, without undue influence and on the basis of informed consent.
The mediation process is quite different from the litigation process. Parties who decide to attempt to resolve their dispute through mediation may choose together who may preside as mediator during their negotiations. There are no formal documents that need to be sent to either party or the mediator, although the individual mediator may request party statements beforehand. The mediator has the ability to guide the parties' discussion and the mediation process in whichever way the mediator and parties decide together would be most beneficial to the successful resolution of the matter. Consequently, each mediation will be different.
Generally, at the beginning of the mediation process, the mediator will take the initiative and explain to the parties both the nature of mediation and what will happen in the mediation session specifically. The parties may then be asked to discuss their concerns, needs and what they hope to achieve. From this point, with the mediator's assistance the parties can narrow the issues and uncover underlying interests that they may not have been consciously aware of that were impeding their ability to resolve the matter. The mediator may then try to get the parties to agree on an agenda of interests that need to be addressed. Once an agenda has been set, the mediator will help the parties explore their interests as they relate to the current dispute. By keeping the discussion flowing, the parties may be able to come to a better understanding of their own motivations, as well as each other's.
After each issue has been explored to the parties' satisfaction, the mediator may then choose to encourage a brainstorming session to generate possible solutions to the problems facing each party. Since mediation is an interactive process, both parties will be encouraged to contribute to a list of options for settlements. Creativity is fundamental to the mediation, so no suggestion or option is without merit.
The end of the mediation, if not predetermined, will be identified by the mediator. If the parties come to a mutually agreeable solution to their dispute, the mediator will work with the parties to draft a mediation agreement. Each party will have opportunity to revise the draft agreement as they see fit. Once the draft is completed, each party will be asked to sign. Copies of the agreement will be given to each party. Should a settlement not be reached before the end of the mediation process, this does not prohibit the parties from bringing the matter back for mediation in the future.