Mediation: The Basics
Mediation is one of the most common methods of alternative dispute resolution (ADR). It is mainly used to resolve civil disputes and preferred by many because, if successful, it avoids or ends the litigation process. As a result, it saves the parties both time and money, and allows them to move on to other aspects of their lives and businesses.
What is mediation?
Simply put, mediation is a form of alternative dispute resolution where aggrieved parties attempt to settle their differences through negotiation rather than through the court litigation process. The mediation process is typically facilitated by a neutral third-party mediator who can be a lawyer, retired judge, or anybody acceptable to both parties.
Mediation is generally a party-centered process in the sense that it puts emphasis on the rights, interests, and needs of the parties. In the mediation process, the mediator applies different techniques to steer the dispute resolution process in a constructive manner.
Although different mediators have different approaches to the process, typically they do not opine on who has the better argument but, rather, seek to assist the parties in reaching their own consensual resolution of the dispute by focusing on a settlement that works for both sides.
Importantly, the mediator does not decide the outcome; rather, the parties themselves choose to accept of reject any settlement proposal that arises in the course of the mediation. A suggested settlement can be proposed by the mediator and/or by the parties. Both parties must voluntarily choose to accept a proposed settlement. If there is no settlement, the parties are left in the same position they were in prior to the mediation.
Mediation can be tried before or during the pendency of a court proceeding. Increasingly, courts encourage the use of mediation to resolve disputes in a bid to reduce case backlog. Many courts offer free or cost-effective mediation programs to encourage greater use of the process. There are also organizations that provide mediation services for a fee, including a list of mediators from which to choose. In addition, there are many independent mediators who for a fee will mediate a dispute.
What cases can be resolved through mediation?
Mediation is normally used to settle civil disputes. These are cases that do not involve criminal activities and basically involve two or more parties that are involved in a dispute. The types of civil disputes that can be mediated include contract disputes, property disputes, partnership disputes, employment disputes, and other business and commercial disputes, to name a few.
Advantages of mediation
There are many advantages to using mediation rather than court proceedings to resolve conflicts, including:
- Less costly: mediation is much less costly to undertake compared to going through a court litigation process.
- Saves time: mediation can take far less time to resolve a conflict between parties as opposed to litigation. Mediation typically lasts one or a few days, as opposed to litigation which can go on for years.
- Privacy: as opposed to a court proceeding which is public, mediation is confidential.
- Flexibility: mediation is a flexible process which, for the most part, is driven by the parties and their interests. This is different from court proceedings where the rules cannot be altered.
- Win-win results: a settlement reached as a result of a mediation is something both sides have determined they can live with. This is entirely different than having a court rule on the merits of the dispute where, typically, one party wins and the other loses.
How an experienced business attorney can help
Although it is not require to have a lawyer assist you in the mediation process, it can be extremely helpful and advisable to have the wise counsel of an experienced attorney help you navigate the mediation process.