What is mediation?
Here’s what mediation is—and isn’t.
Mediation is an excellent way to quickly resolve disputes and save money in the process. Parties who disagree about an issue meet separately with a neutral person—the mediator—who helps them decide how to resolve their dispute.
Whether you choose to mediate online using a virtual app or you want to mediate in person, you don’t have to be in the same room with your opponent. A direct confrontation isn’t necessary. The mediator doesn’t take sides and doesn’t decide on a result. Instead, the mediator uses proven strategies to encourage a conversation and a negotiation, where everyone considers options and paths forward, ending the dispute.
IN MEDIATION, YOU DECIDE THE RESULT. You are in control.
Another option—litigation—is like going into combat.
Litigation generally tracks slowly toward a trial or arbitration, where a judge or jury—strangers—decide your fate in public. Your opponent’s attorney cross-examines and confronts you in the courtroom and tries to prove you’re wrong. And a trial might not be the end it; appeals and retrials might be necessary. Litigation pits one side against the other in an imperfect and sometimes unfair system, where someone eventually wins, and the other suffers the consequences of losing. Litigation increases conflict rather than working to decrease it. SOMEONE ELSE DECIDES THE RESULT.
Mediation, however, is like a peace negotiation.
Mediation is solutions-oriented and forward-focused, as the parties and mediator explore ways to resolve the dispute and move forward. The process focuses on your interests and priorities. Mediation is generally collaborative, with both parties working together to find an acceptable solution. IT’S CONFIDENTIAL.
A mediator’s role is not to provide legal counsel, therapy, or business advice; it’s to help the parties reach an agreement that works for them both so that they can move on with their lives or business.
Mediation has many benefits. Consider just a few:
The essence of mediation is that it’s voluntary. The parties decide whether and when to mediate, what issues to mediate, and who will mediate their dispute. The parties decide how long they will participate in mediation, whether they can reach agreement, and on what terms. It’s up to the parties to decide whether they can or cannot resolve issues—and they can declare an impasse. The parties also decide whether and when to return to the negotiating table.
Litigation can go on and on, with lawyers’ fees, experts’ fees, court reporter costs, and other expenses mounting. With mediation, participants can resolve their case quickly, many in just one session or in a few sessions.
Control of Outcome.
In mediation, the parties decide on the outcome. This is different from trial and arbitration where a judge or jury decides the case—strangers who might or might not like one party or the other, the lawyers, or the arguments, approach, or evidence.
Litigation and arbitration are contentious. They are based on the theory that truth will come out of a contest between adversaries and lawyers. But often legal cases are not about truth; they are about one party’s ability to convince the judge or jury that their point of view is right.
People often think of trial as the end of a conflict. But often trial results in one of the parties continuing to fight by filing an appeal. Appeals add cost and uncertainty to the situation, dragging out the process. Appeals might send the case back to trial—potentially resulting in another trial and even another appeal. Mediation, on the other hand, concludes the dispute, once and for all.
Litigation is an effort of one party to force its will on the other, convincing a judge or jury to render a decision about who wins. But, in mediation, parties work together to come up with a decision that works for everyone. The collaborative mediation process often is cathartic—parties get to tell their story while working to understand the others’ positions.
Mediation Format, Structure, Timing
Mediators have different processes, and we often adjust our processes depending on the needs of the parties and case. My basic process is this.
Step 1: Getting the facts
First, I interview both parties (and/or their lawyers, if any) to find out exactly what the problem is, what they think will be helpful, and what log-jams are getting in the way of solving the problem. Is there a personality conflict? An absence of evidence? A dispute over money or responsibility? Key good or bad facts that are smoking guns? I want to learn as much as I can from both sides in advance of our first mediation session so we can be most productive.
Step 2: Joint Mediation Session
The first joint mediation session is a get-together at a location where both parties are comfortable. This is often a lawyer’s conference room, or conference rooms that I have available. It’s best if parties can be together physically in the same room, at least for awhile—but, many times, parties prefer to remain in different rooms so they aren’t forced to confront each other face-to-face. Obviously, it’s counterproductive to meet in the same room if that will cause tempers to flare out of control.
As the mediator, I act as a neutral party who is responsible for establishing workable ground rules for what happens next. Where will the meeting(s) take place? Who will be in attendance? If children are involved in the conflict, where and when will they be allowed to voice their opinion? How much time will be devoted to discussion? Do we all promise to listen without interruption? Do we all promise to not storm out of the room, without giving me the opportunity to save things if they go south? What are possible options, issue by issue? Do we agree that everything we say is confidential, not to be shared outside of the room? Together, we set boundaries for the mediation, so everyone knows what to expect (including how much money will be spent on this whole process)—and so that we begin the habit of saying “yes, I agree.”
People want to be heard. Plain and simple. Knowing that you can tell your side of the story, without interruption, taking as much time as you need, can reduce the stress in the situation immensely. If both parties are in separate rooms, I go back and forth to meet privately and find out how each party defines the problem, to ask questions and encourage conversation. Then I’ll report to the other party what progress has been made, and hear their side of the story, and their suggestions.
The goal of the first session is to develop an agenda of all the issues involved in the case, and work through them, one by one, with follow-up sessions as as necessary. When lawyers are part of the process, I ask them to give me a description of key issues at stake—liability (who is at fault, in their opinion), causation (how the fault caused injuries), and damages (what past and future harms occurred. In divorce cases, we work on property-division issues, business valuations, and custody and parenting plans. If children are of appropriate age and the parents believe their opinions are important to the matter, we can bring them in to discuss their concerns with me by themselves, or in the same room with one or both parents.
Step 3: Individual sessions
As time allows, we continue the first session or, if necessary, schedule future sessions in order to continue the discussion or work on additional issues.
I typically address the simplest issues in the conflict first. It’s important to acknowledge find out on what issues both parties have common ground. For instance, in a case involving parenting, two spouses might agree they want their kids to be safe. That might look different to each side, and we’ll need to explore that. In civil litigation, sometimes the parties agree that liability is established, and the real issues are causation, damages, and the plaintiff’s own wrongdoing.
Next, we explore other difficult issues. In a family law matter, this might be safety issues are of concern to each spouse, without judging what or who is right or wrong. One parent might feel that they shouldn’t have to split custody with the other parent. Is that because the other parent might pose a danger to the children? Or is the issue an emotional one, based on a fear of loss of control over the family dynamic? Once a conflict has been boiled down to its core issues, it’s much easier to brainstorm solutions that are workable for both spouses.
The goal is to clear the air, allowing each side to brainstorm a way to move forward with a new reality.
Step 4: Put it in writing
I find that it’s useful to start drafting an agreement early in our discussions. Once both parties have aired what they need to air, and begin focusing on solutions, issue by issue and see that they are deciding the new agreement that will be fair to them, they often shift focus focus to a forward-looking solutions mindset versus fighting one another. So we often work through a solutions that we records in an agreement, one paragraph at a time. As the solution takes shape in writing, I find that it’s almost a magical thing that begins to happen. All of a sudden, both parties are working together on a common goal—a workable, practical solution that’s agreed on by everyone involved.
Step 5: Decide what happens in the future
Often the parties will get a court order confirming their agreement to make it enforceable by court order, or because of the agreement we reach in mediation, they’ll dismiss their claims.
Sometimes one or both of the parties to the agreement are concerned that other conflicts will arise in the future, as often occurs in family law matters, and complex cases like environmental cases. I can asssist in dealing with those ongoing matters before things get out of hand.
In a family law matter for example, a spouse with a concern can ring me, we can chat, and I can speak with the other spouse to work things out. This sometimes helps quite a bit in the stages shortly after divorce as the parties get used to their new reality. What if your parenting agreement says that you must pay half of the fee for your child to attend football camp and you suddenly lose your job? We could create a workable solution to avoid having the recent job loss create an escalating conflict for the family, and avoid expensive litigation.
In environmental cases, as an example, we might have a court reserve jurisdiction during the remediation phase as site cleanup occurs, with occasional disputed matters being mediated as necessary.
We can define in an agreement exactly how we can deal with a variety of situations. If issues come up, you will have a well-defined process to quickly resolve the issue before it gets out of hand.
The goal is that both parties are confident that they have a practical way to handle any future conflicts.
When can I choose to mediate?
Even if you’re already in court, in the middle of litigation, you can choose to take your matter to mediation. Your attorney can be by your side in mediation, or you can choose to work directly with the mediator by yourself. Mediation can be chosen early in the life of a case, in the middle, or even in late stages.
Obviously, if you choose to mediate your dispute early, you’re going to save money on attorneys’ fees. You might have less information, because you’ve not yeet spent money on discovery, but discovery and knowledge of the opposing party’s case comes at a cost.
Imagine two business owners whose businesses deal with buying and processing oranges. Both of them buy their supplies from the same seller. Although each business owner needs 1,000 bushels of oranges, and the seller can usually supply the 2,000 bushels total, so there’s no problem with supply. But one winter, a frost kills all the oranges, and the seller has only 1,000 bushels available.
The parties dispute their rights to the oranges. Each business owner, naturally, wants them all.
In litigation, the court decides in favor of one or the other—satisfying one party while completely dissatisfying the other.
Now let’s say that those same two business owners decide to mediated their dispute. The mediator might have each one disclose more about their interests. One business owner might disclose, for example, that her company makes juice, and simply wants the oranges’ juice. The other might disclose that his business makes potpourri, and it only wants only the orange peels. In mediation, both parties might reach an agreement that completely satisfies them both—one business can squeeze and then use the juice from the 1,000 bushels, and the other can use the peels from the same 1,000 bushels. In this illustration, both parties collaborated to achieve an outcome better (and cheaper) than litigation.