What is Mediation?
Mediation is defined as a negotiation to resolve differences that is conducted by an impartial party. The mediation process is considered private and confidential between the parties involved. A typical mediation will involve the parties themselves as well as their representatives plus an outside, neutral mediator. The mediator is the focal point of mediation. His/her job is to listen and evaluate the situation and attempt to resolve the matter through an amicable settlement.
How does the process take place?
FINDING A MEDIATOR
The first step in mediation is deciding on an appropriate mediator. This is an important step in that the parties must come to an agreement on what they feel is a competent, experienced, and neutral mediator. After deciding on a mediator the parties come to an agreement on when and where mediation negotiations take place.
EXCHANGE OF INFORMATION
Upon the completion of these preliminary steps the parties must agree to an "adequate exchange of information" in order for mediation to be successful. Prior to the firs mediation session the parties will submit to the mediator what is known as a "Position Statement." This is basically the equivalent of a brief that one would file with a court during litigation.
After the mediator has received and evaluated the Position Statement the actual mediation sessions will begin. At that point the mediator will have a joint meeting attended by both parties and their legal representatives. At the meeting the parties will openly discuss their problems including the facts, evidence and legal authority in justifying their position.
Following the initial joint session the mediator will meet with each party individually. This is known as a "caucus." The purpose of the caucus is not only to gather more information from the parties that they would not normally share with the other party but to attempt to convince the party of a prudent course of action.
The result of mediation is not binding on any individual who is a party to it. The way that a successful mediation is concluded is by the signing of a written agreement outlining the conditions of the settlement. This basically acts as a contract between the parties. If a dispute later arises out of the concluded mediation the signed settlement can be evidence that a contract existed between the parties.
What if mediation fails to reach an amicable result?
If the parties fail to reach an amicable result from this "facilitative" form of mediation the next step is to undergo an "evaluative" approach to mediation. When this happens the mediator will take the role of a "fictitious courtroom." His/her job at this point is to take into consideration all the facts and evidence and predict what a court of law would conclude if the matter were to proceed to the litigation stages.