The Mediation Process

In mediation, disputants sit down in a neutral location with an impartial third-party (mediator) to discuss their dispute and attempt to reach a mutually acceptable resolution. Mediation differs from arbitration in that a mediator will not make a decision for the participants, but instead will help them fashion a resolution that is more likely to satisfy their needs and interests.

In addition, a mediation is typically much less costly than litigation or arbitration. While litigants may have to pay for lawyers, court reporters, expert witness fees and other costs associated with a court case, a successful mediation will often only require the payment of a mediator’s fee plus travel expenses.

The mediation process is flexible and can be tailored to suit each individual situation. However, in general, the first mediation session starts with the mediator giving each disputant the opportunity to make an opening statement. This allows each party to explain the background of the case and its consequences, both financial and otherwise. During this stage, it is not uncommon for disputants to express their emotions as they describe their positions on the dispute.

After the initial statements, mediators will often go into private sessions with each side to hear their sides of the story. In these private sessions, called caucuses, the disputants can be free to discuss the matter with the mediator without interruption. The mediator may encourage these discussions in an attempt to better understand the issues and the parties’ positions. These sessions are the heart of the mediation process and often form a crucial part of a successful settlement.

During this phase, the mediator will often play devil’s advocate to “reality test” the disputants’ assumptions and help them gain a more comprehensive view of the case. They will also help the parties let go of unhelpful attitudes and emotions in order to find solutions that will best serve their mutual interests.

Once the parties have negotiated a settlement, the mediator will draft a written agreement that is signed by both parties and approved by the mediator. If either party has a legal objection to the settlement, it can be submitted to the court for a judge’s review. This is a common procedure in complex cases. However, in most cases the settlement will be final and binding on both parties. In addition, a successfully mediated settlement will preserve working relationships that might be lost in a win/lose court proceeding. This benefit is especially important when disputes arise in the context of ongoing business relationships. This is one of the primary reasons why companies in the United States and many other countries are embracing mediation as an alternative to litigation.

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