Mediation – Overview 

Mediation is a way to settle conflicts.  It can be utilized for any type of dispute (e.g. employment, domestic, business, etc.).  Parties can voluntarily agree to mediate.  If a lawsuit is pending, the court may order the parties to mediate.  Mediation is a confidential process so if the matter is not settled no one will hear what happened, including a judge and/or a jury.

The mediator is neutral and has no interest in the outcome.  The mediator’s role is to facilitate settlement discussions and help the parties reach their own agreement.  The mediator may be an attorney but does not represent anyone and does not give any legal or financial advice.

The benefits of mediation include keeping control over the outcome by making your own decision.  A successful mediation allows the parties to save substantial money in fees, expenses and avoid interruption to their businesses or personal lives.  A settlement gives everyone certainty, finality and closure.  The parties do not have to agree to settle the case and the mediator does not make any decision as to the outcome of the case.

Mediation Process – Joint Session and Caucuses

The mediation typically starts with a general session allowing all the parties to meet together and make any type of statement that want to share with the other side.   It is an opportunity to hear the other side’s position.  It also gives the people involved in the dispute a platform to share their experiences.  It is not a courtroom and should not be treated as an adversarial process.

A caucus is when the parties are separated and the mediator meets privately with each side outside of the presence of the other side.  There is an extra layer of confidentiality and information may not be disclosed by the mediator to another side without permission.   The mediator may reality test the positions and provide insight from a neutral perspective on the strengths and weaknesses of the case.  In caucus, negotiation strategies are discussed and demands and offers are relayed to each side.

There may be times when the mediator meets with the attorneys without their clients or brings everyone back together.  It is a fluid process and different approaches may be helpful if the parties are stuck.  The mediator can guide the process to reach an agreement.