Mediation is a voluntary process that enables disputing parties to reach their own mutually acceptable settlements of disputes. This resolution is faster, cheaper and more private than a court case. It also provides an opportunity for both sides to resolve the conflict based on their own priorities and values, instead of a judge’s judgment.
The mediation process may take place in person, in a conference room or via telephone. Both parties choose their mediator, which gives them a sense of control and confidence that the individual will help them move the case toward resolution. A good mediator will question and investigate not only the issues in dispute, but also the underlying conflict. This requires a degree of empathy as well as inventiveness and the ability to provide distractions in order to allow the parties to explore their positions from other angles.
At the first mediation session, the mediator will generally encourage each party to make an opening statement and explain their position and what they consider a satisfactory resolution would be. This is a critical step for establishing the facts of the case and determining whether the parties have any areas of agreement.
After the opening statements, the mediator will caucus with each side separately and try to determine where there might be areas of agreement on any of the issues in dispute. Depending on the style of mediation, the mediator might ask open-ended questions, listen for emotional undercurrents in the dialogue and repeat back key ideas to the parties as they negotiate.
If there are no areas of agreement at this stage, the mediator will re-convene the joint session and discuss possible options for settlement. It is not uncommon for additional sessions to be required to explore the options and to work through the barriers that might prevent a settlement from emerging.
In about 80% of all mediated cases, a settlement is reached and recorded. Sometimes the resolution is a “win-win” and other times it is just barely acceptable to one party but better than a long, costly and uncertain journey through the courts.
While many dispute resolution professionals advocate that the parties do not bring predetermined “bottom lines” to mediation, this is not always possible or desirable. Having some understanding of the other parties’ absolute boundaries can be helpful, however, because it allows participants to explore the consequences of making certain proposals and will prevent surprises down the road.
Mediation is a flexible, collaborative process that is often customized to the circumstances of each case. In some instances, it might be useful to involve an outside consultant who specializes in particular areas of dispute or has expertise in the area in which the dispute arises. For example, a forensic accountant might be useful in helping a financial dispute settle when the experts on each side disagree on the value of an asset. Similarly, an employment specialist might be useful in resolving workplace disputes. A neutral expert can help both sides focus on their real interests and avoid overreaction to the impact of their position on the outcome of a dispute.