Mediation, one form of alternative dispute resolution (ADR), can be an effective way of resolving a dispute out of court. It is typically limited to civil cases, although some non-violent criminal acts (such as harassment) may be resolved through mediation. Mediation differs from arbitration, but they are both alternatives to litigation through the courts. This section includes articles covering the basics of mediation, the types of cases that may be mediated, how it works with small claims, and some of its key advantages. In addition, you will find answers to some of the most commonly asked questions about mediation.
Mediation at a Glance
Mediation is often compared to arbitration, and the two are similar in many ways. But while arbitration is more akin to a trial, leading to a decision by a third party, mediation is more of an interactive negotiation by the third party. In fact, the two parties are ultimately responsible for exchanging information, bargaining, and eventually coming up with a solution or a series of steps in order to resolve the dispute. The third party mediator doesn't decide for them, but rather helps interpret concerns, relay issues, define problems, and encourage solutions.
Once a resolution is reached and agreed to by the parties, it typically carries the weight of a legally valid contract (but this often depends on the particular law or jurisdiction). Some mediations become court judgments. But if an agreement is not reached, the parties may pursue arbitration or a lawsuit.
Advantages and Disadvantages of Mediation
Sometimes lawsuits are the only way to resolve a dispute, particularly when the parties are unwilling to compromise or even communicate directly with one another. But if there's a chance an amicable agreement may be reached, mediation has many advantages over traditional lawsuits. Ultimately, the parties have much more control over the process. Advantages of mediation over traditional civil actions include the following:
- Quicker than lawsuits, typically just a few days or weeks
- Less expensive
- Less formal, more flexible
- Confidential, unlike court cases
- Better results and compliance
While mediation is a particularly effective means of resolving disputes out of court, particularly those involving close or complex relationships, it has certain disadvantages. Generally, the disadvantages of mediation vs. traditional lawsuits include the following:
- Not the ideal format for getting to the truth of the matter (i.e., where testimony and physical evidence are central to the dispute)
- Lack of courtroom procedures meant to keep things fair, putting timid parties at a disadvantage
- There is no guarantee that the parties will reach an agreement
Mediation: General Procedures
To find a mediator, you can go through the American Arbitration Association or other third party services. These organizations typically have a process in place, such as an intake form and a mediator selection protocol. Once the mediation is set up, the process involves six distinct steps:
- Introductory remarks - The mediator introduces him or herself, outlines the roles of each party, and the ground rules for the process
- Statement of the problem(s) by the parties - Each party has an opportunity to tell their side of the story, uninterrupted
- Gathering of information - The mediator will ask questions in order to gather information and summarize key ideas
- Identification of the problem(s) - Mediator spells out the specific problems that need to be resolved, often identifying which issues can be worked out
- Bargaining and discussion of options - The parties and mediator discuss options for resolving the dispute(s)
- Reaching an agreement - Mediator will work with parties to narrow the gap between them and come to an agreeable solution
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