What Is Mediation?

By Daniel B. Bass, Esq.

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Mediation is a process where a neutral and impartial third party, known as the “mediator” helps, facilitates and assists parties who have a disagreement or dispute, reach their own settlement, without telling them what that settlement should be. The mediator does not favor one side or the other, or one agreement over the other. The mediator’s interest is that all parties use the process of mediation in the way to most effectively reach an agreement that both parties intend to be bound by.

The parties work together collaboratively to “solve the problem” rather than point the finger of blame accusing the other of wrongdoing. The purpose is to resolve the conflict and end the dispute. Everyone must agree to the resolution and sign an agreement for the resolution to be binding.

The mediator may meet with one side alone, in what is called a “caucus”, or “private meeting”, and then meet with the other side in a similar manner. The purpose of the private session is to allow people the opportunity to speak more freely or to convey possible settlement alternatives that they want to share with the Mediator without first proposing them to the other party. This allows free discussion, feedback and questions to be asked before the proposal is presented. The Mediator keeps this information confidential unless agreed otherwise by the parties.

The mediator cannot and will not make a party reach an agreement. This is an exercise in free will and the mediator has no power to force parties to do anything. This is YOUR process. If the Court orders mediation, the discussions in general are confidential. The parties, by agreement, can make the mediation proceedings confidential, even without a court order.

Mediation is non-adversarial and informal. Nobody has to “prove” anything. The Mediator usually introduces himself and gives some background information and them asks the parties to tell him what are the issues and problems. The Mediator then determines, with the parties, how best to look for solutions.

The Mediator will use the process in a way that is most comfortable for the parties to reach their agreement.

Once an Agreement is reached, the Mediator reduces it to writing and it is signed by all the parties, their attorneys and the Mediator. It can then be submitted to the court to be made part of the court’s order. The signed Agreement is enforceable.

Mediation has proven to be successful in helping people settle their disputes. Given the opportunity, most people would prefer to help shape the outcome of their dispute, rather than a judge or jury telling them what that outcome will be, whether they like it or not. Mediation puts the outcome of the dispute in the hands of the parties who are directly affected by it. Who better to resolve the dispute.

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