What is Mediation?
Mediation is a non-binding process where the parties seek the assistance of a neutral third party to help them resolve their dispute. The mediator is not a judge and does not decide who should win and who should lose. Rather, the mediator helps the parties identify, and think about, their interests and how to best meet them.
Many mediations are voluntary, but many federal and state courts are routinely requiring mediation.
Most often mediation begins with a joint session in which the parties, or their representatives, and their counsel are present. In some instances, however, the parties may believe that an initial joint session should not be held but that the mediator should immediately conduct individual private meetings which are referred to as caucuses.
When there is an initial joint session, the mediator customarily begins by explaining the mediation process for the benefit of those who have not previously participated in a mediation. The mediator then invites counsel for the parties to make presentations on their client’s behalf. If counsels choose, they may have their client, or client’s representative, also make remarks. Following the joint session separate private meetings with the parties and their counsel begin.
In the private meetings the mediator will ask if there is any confidential information that counsel believes is important for the mediator to be aware of but was not presented in the joint session. Additionally, the mediator will ask questions about the case and the parties’ positions, sometimes playing devil’s advocate. These private meetings result in the mediator engaging in “shuttle diplomacy” and communicating offers and counter-offers throughout the mediation.
Most mediations begin, and may remain, what is called a “facilitative mediation.” In that mediation process the mediator does not express opinions about who will likely win or lose but, instead, engages the parties in discussions that will help them assess their risks and focus on their interests. The mediator will also assist the parties in thinking through settlement options and, when it appears there is an impasse, help the parties work through it.
At times, at the request of the parties, of if the mediator believes it could assist in achieving a settlement, the process may move to what is called “evaluative mediation.” This may occur where the case is complex or an impasse occurs. In an evaluative mediation the mediator does not tell the parties what to do but will express opinions on the merits of the case and what is believed to be the most likely outcome based upon what has been presented and discussed. The mediator may even suggest a settlement range or make a specific settlement proposal and ask the parties if they will agree to it. But, as always, the parties are not required to settle.
It is not unusual for mediation sessions to last a full day. Sometimes they may last longer. The success rate for reaching a settlement agreement at mediation is high. But even if an agreement is not reached the day of mediation, the mediation session often sets the stage for further discussions that more often than not results in a settlement.