Certified Civil Mediator
A Simplified Outline to Understand Mediation
Devron L. Doyno
For many mediation is an unknown, creating anxiety and fear of that unknown. For others the process of mediation is misconceived, viewing the process to be one where the mediator will decide the conflict of disputing parties. Some view mediation as an opportunity to prove they are right and the other party in the dispute is wrong. The following paragraphs will explain what mediation is, the facts of mediation, the role of the mediator, and what to expect during the mediation process.
Why Mediation may be Right for You
Disputes can occur between individuals, groups, partnerships, organizations, or corporations. If there is an incapability or reluctance by parties’ to resolve their issues, these parties may want to consider mediation.
What is Mediation
Mediation is a form of Alternative Dispute Resolution (ADR) used to settle disputes and conflicts between parties' utilizing the assistance of an unbiased third party neutral known as the mediator to encourage and facilitate resolution of the dispute. The process focuses on underlying causes that contributed to the dispute, rather than questioning who is right, wrong, truthful, or at fault.
Mediation differs from court adjudication, where a judge or jury will determine the result of the dispute. To obtain an adjudicated decision from the court, the parties' must endure an adversarial process of court and legal proceedings. Arbitration, which is another form of ADR also is decided by others and not the parties' themselves. This form of ADR utilizes an Arbitrator or panel of Arbitrators to make decision to resolve the dispute for the disputants'. Therefore, mediation is the one form of ADR that empowers the parties' to mutually self-determine the outcome of their dispute.
Mediation is customarily regarded as being less time consuming, less expensive, and a simpler process than formal litigation or arbitration. Considering costs, mediation of disputes and conflicts can be performed at various times, such as: pre-litigation if the disputing parties' agree, as ordered by the court, or as suggested by legal counsel.
Facts about Mediation
- Mediation is a consensual informal process that both parties' have agreed on attending, unless ordered by the court;
- The parties' are free to terminate the mediation at any time during the mediation session, upon notifying the mediator of their decision to do so. Upon such notice of termination, the mediator will notify the other party and declare an impasse;
- Mediation is confidential, enabling the parties' to communicate freely during the mediation session. Confidentiality extended to mediation prevents any information divulged by the parties' during mediation from being used in future legal proceedings;
- Mediation sessions may be conducted with the parties' in the same room or with the parties' in separate rooms (known as going into caucus), or a combination of both;
- A second layer of confidentiality is added during caucus, where the mediator will only share information the party has authorized to share with the opposing party;
- The parties' through self-determination decide the outcome of any agreement, not a third party as in court adjudication or arbitration. You are the Master of your own Destiney;
- The mediator aids in facilitating the process, helps to identify issues, eases obstacles of communication, encourages open minded discussion to explore options, performs as a conduit to present shared information between the parties', and assists the parties' to reach voluntary mutual agreement;
- Parties' are permitted to have legal counsel present for advise on legal issues presented;
- Mediation is customarily less expensive than the costs of litigation.
The Role of the Mediator
- The mediator is an impartial third party neutral;
- The mediator explains confidentiality;
- The mediator will explain the conduct to be adhered to during the mediation session;
- The mediator is to maintain fairness, integrity, and impartiality;
- The mediator helps to facilitate the mediation between the parties';
- The mediator assists the parties' during the process to identify issues, ease obstacles, encourage communication, relay information, and to reach self-determined mutual agreement;
- The mediator is required to report to appropriate authorities any and all recognition of signs of abuse;
- The mediator does not make any judgment or decision of settlement;
- The mediator may assist in drafting the settlement agreement;
- The mediator reports to the court the result of the mediation session.
What to expect during the Mediation Process
- Selection of a mediator, or if mediation is ordered by the court one may be appointed;
- The mediator will conduct a preliminary interview with each individual party or their designated legal counsel;
- The mediator will establish an agreement with the involved parties that includes a fee schedule with the prorated shares of each party;
- Scheduling of a date and time for mediation;
- At the start of the mediation session the parties' will be seated in the same mediation room or separate rooms depending on the requests of the parties'. Through the course of the mediation the mediator may choose to leave the parties together in the same room or decide to go to caucus and separate the parties' into separate rooms, if the mediator views separation as a benefit to maintain positive self-determination, civility, free expression of thoughts, and balancing power imbalances between the parties' during the session;
- The mediator will ask all parties' in attendance to identify themselves;
- An opening statement will be presented to the parties' by the mediator, where the mediator will explain the process of mediation, review the rules of conduct to be followed during the mediation session, and give explanation of confidentiality;
- The mediator will ask for verification from each disputing party, if there is an authorized representative present to make decisions and to approve agreement.
- The mediator will give the opportunity to each party to express their views and positions of the issues in dispute;
- Upon completion of each party’s expression of views and opinions the mediator will start the mediation process. At this point the mediator may decide to go to caucus and separate the parties' if deemed beneficial or necessary at this point;
- The mediator will spend time with each party, assisting them with identifying issues, easing obstacles, encouraging communication, and act as a relay conduit to share authorized information with the opposing side;
- If the parties' mutually reach a self-determined agreement, the agreement will be written by legal counsel or if requested the mediator. If the parties' do not reach agreement, but are willing to continue with a future mediation a session will be scheduled as a continuance. If the parties' fail to reach agreement during the mediation session, or one or all of the parties' decide to end their participation during the session an impasse will be declared;
- Upon completion of the mediation session, the mediator will report to the court the result of the mediation either as: the parties' reached agreement and settled, the parties' have agreed to continue mediation at a future date, or that the parties' reached an impasse. In regards to pre-litigation mediation, no report will be required to be filed with the court.
Mediation is an alternative form of resolving disputes and conflict between parties', empowering those parties' to self-determine the outcome of their differences. The process of mediation with the assistance of a mediator as an unbiased third party neutral should be viewed as nonadversarial, self-determining, and as an opportunity to resolve your dispute without suffering further costly adversarial legal proceedings, extensive consumption of time, and consequence of decision by an outside third party.
Mediation as outlined demonstrates that mediation need not be anticipated as an intimidating event, but as a process one can embrace as an opportunity to hear the position of the opposing side, allowing for the opportunity to personally participate in the process with the assistance of the mediator as an impartial third party neutral to develop a mutually self-determined agreement that resolves the dispute or conflict. Hopefully, this simplified outline has answered questions one may have regarding mediation and the mediator, easing any anxiety and fear of the unknown one may have.