Mediation is a confidential, guided negotiation process by which parties in disagreement can find a way to resolve their differences and either bring the relationship to a dignified conclusion or continue it as they mutually decide.
Unlike the binding decisions of arbitration, in mediation the parties are in charge of the result; there is no binding outcome except what the parties agree to. The mediator is a facilitator, who presides over the proceeding with the parties’ consent and works creatively with each side during negotiations, but does not give legal advice or impose solutions. Mediators are often lawyers informed in the subject area of the mediation, but do not have to be.
All kinds of disputes may be amenable to mediation: family or business disagreements, employment problems, issues between neighbors or among members of a community, or difficulties in relationships between government and the governed. Mediation is typically between two sides, but can be conducted among many sides. A mediator has various approaches to choose from, each of which has research and experience to support it: facilitative, in which the neutral tries to make dialog between the parties easier and more productive; evaluative, in which he or she gives each side a specific sense of the merits of its position and the likelihood of favorable resolution outside the mediation; and transformative, in which the mediator and the parties together work to change patterns that have hampered relations and bring them closer to what everyone desires.
The typical mediation is convened when both sides together approach a mediator for help. Sometimes one side comes to a potential mediator first; this does not preclude mediation as an option, but requires the potential mediator to remain impartial in inviting both sides to the table as an alternative to formal adversary action.
The potential mediator need not know in advance what legal claims either side may have against the other. The idea here is to avoid the time and expense of “lawyering up” and preparing legal claims and defenses for a civil lawsuit or some other long and costly proceeding. But mediation can be useful even after such a proceeding has begun.
Separate preliminary meetings with one or more parties do not imperil the process. In fact mediation is often done on the “caucus” model, a sort of shuttle diplomacy in which the mediator meets with each party in private and goes back and forth, helping each understand what it will take to resolve the issues. A mediation can take a few hours or can be spread over many days, not necessarily consecutive; the goal of the mediator’s procedural decisions is to bring the possibility of agreement closer.
It helps to bear in mind that mediation does not decide who’s right. In fact it’s really the opposite: we find an outcome we can live with, so we can walk away from a dispute without ever having to resolve it.
I am a trained mediator with experience in community and employment mediation, among other subject areas. Let me help you consider whether mediation might be a sensible way to address whatever dispute you face. I can assure all sides that my services as a mediator will come at modest cost. Even the first step of jointly retaining the mediator can show the parties what is possible when they decide to work together.