What is Mediation?
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
How does the process take place?
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.
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.
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.
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
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