What is Mediation? - September 7, 2009
by Joe Salama
Mediation is a process of resolving a dispute where
two or more parties come to a neutral third party, the mediator,
who helps them work through their dispute. The dispute itself
can be a lawsuit on the eve of trial, a workplace dispute, a
business dispute between two companies, a divorce case, or two
neighbors arguing over where the property line should be drawn,
to name just a few examples. The mediator facilitates between
the parties and helps them communicate with each other to help
them reach an agreement.
The agreement reached through mediation is legally
binding and fully enforceable by the parties. The agreement
may be entered in court and have the same force and effect as
a court order.
Mediation is usually voluntary, which means that the
parties are willing participants who choose to sit down together
to try to find a better outcome to their dispute instead of
arguing with one another. They know that if their dispute continues,
one of them will win and the others will lose. Continuing the
dispute therefore means taking a risk. Mediating avoids this
risk. Also, the cost of continuing the dispute is often more
than the parties can bear - whether it is the actual costs of
attorneys fees, or the emotional costs of the ongoing conflict.
These costs can also be avoided by mediating rather than continuing
the dispute.
Mediation also presents a way that the
parties can solve their dispute and have a larger role in the
outcome. In mediation, no outcome can be reached unless everyone
agrees to it. At any point in the mediation, any party can stop
it or walk away with no loss whatsoever. When a party looks
at the options available - (1) going to court and having a judge
or jury decide their fate for them; (2) doing nothing and letting
the dispute continue; (3) going to mediation and putting together
a solution that they are happy with - it is clear why parties
often choose mediation.
Finally, mediation is a confidential
process. This means that what is said during mediation, and
all documents produced in connection with the mediation, are
kept secret (with a few exceptions). This encourages the parties
to be candid with one another without fear of exposing their
legal positions should their cases go to trial. This has been
proven to increase the chances that a dispute will resolve through
mediation.
Mediation is not appropriate for every
dispute. However, its high success rate continues to make it
an attractive form of dispute resolution.
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