The Mediation Process

Mediation is a legal process through which opposing parties can resolve conflicts without going to court. It is one method of alternative dispute resolution (ADR) where a neutral person guides opposing parties to a resolution. 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. Mediators are often lawyers, but also include professionals who’ve gone through mediation training or a mediation program.

This article explores mediation and what to expect during the process.

Determining the best way to resolve your legal issue can be confusing. An attorney near you can help you understand the ground rules of mediation and whether it’s the best course of action for your legal matter.

Understanding the Mediation Process

The mediation process is generally more prompt, less expensive, and simpler procedurally 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 before the hearing or trial, reducing legal fees and time spent in court.

Why Choose Mediation?

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

Joint Session

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 conflict resolution by supervising the exchange of information and the bargaining process. This generally begins with a joint session.

Mediators also speak with the parties individually in “single sessions” or caucuses. What parties share in these one-on-one sessions is confidential.

Role of the Mediator

A mediator helps the disputants find common ground. They also address unrealistic expectations. The mediator might also offer creative solutions and assist in drafting a final settlement. The role of the mediator includes:

• Identifying issues
• Interpreting concerns
• Relaying information between the parties
• Framing issues
• Defining the problems
• Controlling the process in a way that lets each party express their view in a civil manner
• Finalizing terms of an agreement

When Is Mediation Appropriate?

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

Workplace mediation is also used for some employment disputes.

Mediation in Family Law

Family law matters such as child support, spousal support, and child custody often receive referrals for family 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-run mediation programs for free rather than 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

Post-Mediation

If the parties reach a resolution, the mediator may craft a mediation agreement. 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.

Settlement Conference

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.

Get Legal Help With Mediation

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 proceed in the most efficient way possible. While mediation works well for several types of legal issues, it’s not the best fit for everything. Your attorney can review your legal matter and advise on the next steps.

They can also explain how the process works, mediation costs, and tips for successful mediation proceedings.

FindLaw’s directory of ADR attorneys can get you started. Enter your city or ZIP code for a list of qualified legal professionals near you. Because state law is relevant, your attorney should be licensed in your state. Your search results will also show important details about prospective lawyers, like ratings and contact information.