Why Try Mediation?

Mediation is simply a method used to resolve conflicts, and is increasingly used to resolve various kinds of disagreements, including almost all kinds of lawsuits. Mediation affords you (and, if you are represented by counsel, your lawyers) the opportunity to meet informally and to try to resolve the disagreement in a much less expensive and time-consuming manner than the litigation process.

Participants in the mediation process need to be aware of its key aspects:

Mediation is voluntary

Although a judge may have referred your case to mediation, no one can force you to engage in mediation or, once engaged, to reach an agreement. The goal of the mediation process is simple: to try to see if you can work out a resolution that both of you can live with. Agreeing to participate in the mediation process is a positive step toward that goal. It means that you are willing to try, in good faith, to do just three things:

    1. Communicate what’s important to you, your own needs and your own concerns
    2. Listen to the other side in order to understand the other’s perspective
    3. While not ignoring what happened in the past, focus in on the future.

shutterstock_422253547You are in Control

In mediation, the participants are the decision-makers. If the mediation results in an agreement, it’s because you have reached an agreement in whole or in part. In other words, you are in control, not a judge or a jury. In mediation parlance, we call this “self-determination”.

The Mediator is Neutral

Mediators are merely facilitators, not judges or advocates. The mediator’s only role is to try to help you try to resolve the dispute by supporting both sides. The mediator will often reflect back what each speaker has said, may ask questions (even “stupid” ones) in order to gather information and to gain clarity about the nature of the disagreement, and may summarize in order to help the parties to focus on the matter at hand.

Confidentiality

shutterstock_473181802The mediator may “caucus” or meet privately with the each side to the conflict. What is
disclosed in caucus remains confidential, unless the mediator is given permission to share the
disclosure. If, in caucus, the mediator happens to spend more time with one or the other of the
participants, it simply means that it took more time to gather information or to gain more insight
into what the parties may or may not be reluctant to say in a joint session. Every participant in a
mediation is required to sign a confidentiality agreement. As with most settlement negotiations,
what is said in confidence in mediation remains confidential. That’s why no recording is
permitted and the consent of the others is required before persons other than the parties and their
counsel are permitted to participate (whether in person or virtual).