What Is Mediation?

Mediation is when parties meet with a neutral person to help them with conflict resolution. Mediation is one of several alternative dispute resolution methods (ADR) available to parties. It is an alternative to resolving a legal dispute through a trial or court case.

Unlike arbitration, a type of ADR similar to a trial, mediation doesn't involve decision-making by a neutral third party. The parties can initiate ADR procedures or be compelled by legislation, the courts, or contractual terms. Mediators are often lawyers. They can also be other professionals who've gone through mediation training or a mediation program.

This article will discuss how to determine whether mediation is right for you, when to mediate, and what happens after mediation.

Is Mediation Right for You?

When parties seem unwilling or unable to resolve a dispute, one good option is to turn to mediation. Mediation as a process is generally:

• Short-term
• Structured
• Task-oriented
• "Hands-on"
• Confidential
• Less expensive than a trial

In mediation, the disputing parties work with a neutral third party, the mediator, to resolve their disputes. Mediation is a flexible dispute resolution process. The mediator facilitates the resolution of the parties' disputes by supervising the exchange of information and the bargaining process. This generally begins with a joint session.

A mediator helps the parties find common ground and deals with unrealistic expectations. The mediator might also offer creative solutions and assist in drafting a final settlement. The role of the mediator is to:

• Interpret concerns
• Relay information between the parties
• Frame issues
• Define the problems
• Control the process in a way that lets each party express their view in a civil manner
• Finalize terms of an agreement

When to Mediate

Mediation is appropriate for resolving a dispute when a relationship is strained but needs to continue. It is most often reserved for civil cases. Mediation is usually a voluntary process, although sometimes statutes, rules, or court orders may require participation in mediation. This depends on your jurisdiction and the subject matter of your dispute. 

Although parties may be ordered to attend a mediation session, any settlement agreement is voluntary. Mediation is common in:

• Small claims courts
• Housing courts
• Family courts
• Some criminal court programs and neighborhood justice centers

Family law matters such as child support, spousal support, and child custody often receive referrals for mediation. Divorce mediation is also common in local courts. Mediation over domestic violence or the status of protection orders is less common as there may be an imbalance in power between the parties. In some states, you can use court mediation programs that are free versus using a private mediator.

Unlike the litigation process, where a neutral third party like a judge imposes a decision, the parties and their mediator ordinarily control the mediation process. The parties and the mediator decide:

• When and where the mediation takes place
• The number of sessions
• Who will be present
• How the mediation will be paid for
• How the mediator will interact with the parties

After a Mediation

If a resolution is reached, mediation agreements may be oral or written, and content varies with the type of mediation. Whether a mediation agreement is binding depends on your state laws. Most mediation agreements are considered enforceable contracts if they are written and signed by the parties. In some court-ordered mediations, the written agreement may be adopted as a court judgment. Parties may express more satisfaction with a mediated agreement. They may be more likely to follow its terms.

If an agreement is not reached, the parties may pursue their claims in other forums or proceed to a settlement conference. However, what's said in mediation remains confidential. Parties cannot use mediation statements and proposals at a contested hearing or trial.

The mediation process is generally more prompt, inexpensive, and procedurally simple than formal litigation. Mediation allows the parties to focus on the underlying circumstances that contributed to the dispute instead of on narrow legal issues. If the parties reach an agreement, the case resolves itself prior to hearing or trial, reducing legal fees and time spent in court.

The mediation process doesn't focus on truth or fault. Questions about which party is right or wrong are generally less important than the issue of how the problem can be resolved. Disputing parties seeking vindication of their rights or a determination of fault are unlikely to be satisfied with the mediation process.

You Don't Have To Solve This on Your Own—Get a Lawyer's Help

Do you have a legal dispute that could be resolved by mediation? Seeking legal advice from a lawyer can help you understand your options and how to protect your legal rights. You can learn more about how mediation works, what mediation costs, and how to obtain mediation services. Visit our attorney directory to find a lawyer near you who can help.