Mediators are neutral, third-party professionals who help disputing parties resolve their dispute without going to court. They are specially trained to use a collaborative process to assist the parties in reaching mutually acceptable solutions to their problems.
Parties to a dispute usually enter mediation willingly, in most circumstances the mere fact that they are voluntarily participating means that they are ready to work cooperatively toward resolution. Mediation is often less stressful than litigation, because mediation sessions are usually shorter and less adversarial than traditional court proceedings.
Mediation typically takes place in the mediator’s office and can last half a day or more. The parties and counsel select a mediator who has experience in handling cases similar to their own. Mediation can also be conducted remotely by video conference.
Before the session begins, the mediator introduces himself and explains his role. He may also confirm the case data if he has received briefs from the parties in advance of the mediation session. Then he invites each party to give an opening statement. This is an opportunity for the parties to describe their concerns in their own words, and their lawyers can accompany them if they wish.
Once the parties’ opening statements are complete, the mediator will usually hold a joint discussion to help define the issues in their dispute and brainstorm potential solutions. The mediator might ask questions to clarify and further define the issues as necessary.
Following the joint discussion, the mediator will likely meet with each side individually in private, called caucuses. The mediator will discuss the strengths and weaknesses of each party’s position with them privately, going back and forth between rooms as necessary during the time allotted for caucuses. The mediator may also bring the parties together to negotiate directly, but this is not always the case.
At the end of the session, if the parties reach an agreement, the mediator will typically put the main provisions of the agreement in writing for each party to sign. If the parties did not reach an agreement, the mediator will help them determine whether meeting again later or continuing negotiations by phone would be productive.
Depending on the circumstances, the parties to a dispute might choose to hire their own mediators or the mediators may be appointed by the courts. Some states have special programs that train mediators, and others maintain lists of approved mediators. Contracts that specify mediation often have provisions for a third party to suggest or impose a mediator. Mediators can be liable for misleading parties, or for inadvertently breaching confidentiality, but such claims are rare, and damages are generally compensatory rather than punitive. Despite this, mediators must be properly trained to handle the unique responsibilities and challenges of their position. There are various organizations that provide training for mediators, including the National Conflict Resolution Center and the Dispute Resolution Institute. In addition, professional associations and state bar associations sponsor continuing education courses for mediators.