What is Mediation?
Mediation is one form of dispute resolution alternative to court litigation. Perhaps it should be called one form of “Appropriate Dispute Resolution”. The essence of mediation is a consensus based resolution with a mediator acting as a facilitator.
A mediation session involves a structured discussion of the dispute by the parties rather than a formal process involving witnesses, evidence and oath taking as in court trials or arbitration proceedings. Generally, only the mediator, the parties and counsel would be present. The mediation is normally held in a private meeting room or boardroom and no transcripts or records are kept of the meeting and discussions themselves. Mediator’s notes are privileged and confidential and are not available to the parties or anyone else, unless so ordered by a court should a settlement agreement be breached. Most mediation agreements provide that the mediator cannot be called as a witness in such event. Because of the informality of the process, mediation can usually be completed in one or two days or less.
Mediation is non-binding, but the requirement to mediate can be dictated by court rules and contract terms. The mediator has no decision making power whatsoever, nor can they compel the parties to accept a settlement offer. The mediator’s role is solely to assist the parties in their negotiations by identifying barriers to settlement and to guide the parties in developing appropriate strategies for overcoming them.
Mediation’s structure, timetable and dynamics are what is lacking in “ordinary” negotiation. While there may be no obligation to go to mediation, in most cases, any settlement agreement signed by the parties to a dispute can be binding on them.
Mediation gives the parties the opportunity to discuss the issues raised, clear up misunderstandings, determine the underlying interests or concerns, find areas of common ground and, ultimately, to incorporate those areas of agreement into a resolution.
A mediation session is private, confidential and without prejudice. This encourages the type of open and candid discussion necessary to help each side understand the other’s position. The key advantage of a mediated settlement rather than a court or arbitrator adjudicated decision is that the parties are more likely to continue with a business relationship.