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Mediation - Definition

Chloe Meltzer | March 06, 2023

Can't we come to some kind of agreement?

Summary: Mediation is a structured process negotiation process that assists two parties in coming to a resolution without having to deal with the court system.

In the United States, there are many federal and state laws that govern mediation. These laws are complex, but they regulate the relationship between mediation and the regular trial. Although alternative dispute resolution methods have been around for a while, mediation has changed over the years. More specifically, it's changed from an authoritative trial to dispute settlements. Here's everything you need to know about mediation.

What is Mediation?

Mediation is a structured negotiation process. A mediator is an independent person or entity who assists two parties in coming to a resolution. They will identify and assess all of the aspects of the dispute in order to attempt to negotiate an agreement. In the event they cannot resolve their issues and come to an agreement, the mediator may make the final decision. Mediation is an alternative to going to court and standing in front of a judge and jury.

What is the difference between mediation and arbitration?

Arbitration is another type of alternative dispute resolution that avoids going to court. However, arbitration is more similar to the court process because it involves a neutral third party who makes a decision after reviewing both sides of the case. In mediation, the two parties come to agreement on their own terms with the help of the mediator. This is the primary difference between mediation and arbitration.

Some cases are more suitable for mediation than others

Most cases are suitable for mediation. However, there are some matters which are more commonly mediated than others. For example, those mediated at the Federal Court level often include:

  • Commercial and corporations law
  • Intellectual property
  • Industrial law
  • Consumer law
  • Human rights
  • Admiralty
  • Tax and costs

Is your case right for mediation?

Some factors about your dispute might indicate whether or not it is suitable for mediation. These might include:

  • Both parties have a willingness to participate in mediation
  • If the judge's decision may not end the dispute
  • The parties wish to preserve their relationship
  • The existence of non-monetary factors
  • The potential for a negotiated outcome being better than what a judge might decide

Why mediate?

Choosing mediation over a traditional trial is beneficial in many ways.

Mediation takes less time

Usually, if there is a dispute, it can be resolved much more quickly through mediation than trial. This allows both parties to get back to their daily lives sooner. No one wants to spend several hours in a courtroom over the span of several weeks, and even months. Mediation lets you avoid the backed-up court system and find a resolution faster and more efficiently.

Mediation costs less than courtost

If a dispute can be resolved through mediation, then the costs of going to trial are avoided. This includes paying a lawyer for their time, court filing fees, and any other costs associated with trial. Additionally, in many cases, the losing party will be required to pay the legal fees of the other party as well, which can increase fees tenfold. Mediation avoids the unequal distribution of costs and

Mediation gives you flexibility

Because mediation offers more control of the situation for the parties involved, it also offers more flexibility. Rather than having your fate in the hands of a judge, you have more control over the outcome. Mediation processes can also be customized to your needs based on who you are working with as a mediator.

Court is more stressful than mediation

Mediation is a less formal and less intimidating form of judgment than going to court. You do not need to prepare in the same way as you would when going to court, and overall it allows you to feel more relaxed as you negotiate a resolution.

Mediation keeps your case private

Mediation is completely private. The judge is not informed of the contents of the mediation, and usually, it cannot be used in the trial should the case get to that point. On the other, all court cases are public knowledge with easily-accessible records online. Mediation allows you to maintain your privacy, which is important when dealing with sensitive topics like your finances. .

People are more satisfied with mediation

People who have resolved issues through mediation are typically more satisfied with the outcome of the case, because the two parties are able to discuss and agree on the outcome. This gives each party a sense of control in the process. Rather than wait for a judge to make a decision based on their own feelings, the two parties have a say in the matter.

Mediation is the final word

Lastly, mediation brings finality. Settlement agreements can only be modified with the agreement of all parties.

Who attends mediation?

During a mediation, the parties are in ultimate control of any decision used to resolve their dispute. While preparation is always good, it doesn't take nearly as much prep to attend a mediation hearing as it does to go to court. Of course, part of that preparation may include finding an attorney to represent you. With mediation, you don't have to worry about that.

While you might consider bringing in a lawyer, or someone who knows the laws of the court, it is not necessary. However, the court requires any attendee to be an authorized officer who is able to make a decision about how the dispute might be settled. Should it be a representative for an organization, they would need to be able to legally enter into an agreement on behalf of the organization.

Mediators are accredited professionals

Each state has rules or guidelines that pertain to mediators, however, there is no system to accredit mediators. JAMS Solutions, American Arbitration Association (AAA), and Forum, three of the leading alternative dispute resolution organizations out there, set qualifications for mediators. This can include professional experience and licenses, as well as the amount of training in mediation skills, or continuing education requirements. Typically, mediators are lawyers or former judges.

How mediation is conducted

When parties decide to resolve their dispute through mediation, they select a mediator by agreement. Usually, this is done with an organization such as JAMS, AAA, or Forum. There is also the chance that you can choose from a roster of court-approved mediators. Because mediation is more informal than arbitration or litigation, it does not use rules of evidence or procedure. Instead, mediation can include a joint conference with the parties, as well as their counsel. Everyone will work to define the issue, and then work to come to a settlement. Here's a little breakdown of the overall process:

  • Before mediation: You may receive a few phone calls from your mediator to work on scheduling the mediation hearing. During this preparation period, you can inform the mediator of any important issues regarding the case. You can also discuss certain rules and boundaries that will be applied during your mediation to make it more tailored to your dispute (i.e. opening/closing statements, who else will attend, etc.).

  • During mediation: During the mediation session, the mediator listens to both sides of the case and helps the two parties come up with collaborative, creative ways to resolve their dispute. The mediator is trained to remain neutral, so both parties will leave feeling heard and validated.

  • After mediation: If a resolution or settlement isn't reached during mediation, the mediator will follow up with both parties after the session.

How to prepare for mediation

You can improve the quality of your mediation by considering a few things. First off, consider what issues are in dispute. You may also want to consider the facts, as well as sources of conflict. You should also be aware of what is important to you. What do you want to get out of the mediation, or what do you wish to preserve? Finally, decide what you will say at the start of the mediation, to assist in resolving the dispute, as well as your final statement.

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