There are many important considerations when the parties agree to mediate disputes.

COPYRIGHT 2008 MINA AKINS BREES

EDITED AND AMENDED 2010, 2011

BY

SAM GRAHAM J.D.

I. Introduction

A. Definition

Mediation is a forum in which an impartial person, the mediator, facilitates communication between parties to promote reconciliation, settlement, or understanding among them.

Additionally, mediation is a process whereby a mediator attempts to facilitate and assist the parties in resolving their dispute themselves. The process, although historically used over thousands of years in a variety of contexts. In the last fifty or sixty years the mediation process has had a resurgence in the United States in its utilization as a dispute resolution process at both the court and community levels.

Mediation is, in essence, facilitated negotiation. It is a process by which a neutral third party, the mediator, assists disputing parties in reaching a mutually satisfactory resolution. The term mediate is derived from the Latin “mediare” which means, “to be in the middle.” Certainly the mediator finds herself in the middle of a dispute between or among feuding parties, but mediation involves much more than placement of the mediator at the meeting of the parties.

Mediation should not be confused with arbitration or other ADR processes, although this sometimes occurs. Arbitration is an adjudicatory process in which the third-party neutral, the arbitrator, renders a decision after hearing proofs, evidence, testimony of witnesses, and arguments. The arbitration is not rigidly restricted by law as courtroom procedure, and the decision of the arbitrator may either be binding or non-binding.

In contrast to the adjudicatory process, the mediator is not a decision-maker. In the mediation process there are no formal proofs and arguments, and no decision is forthcoming from the mediator. The mediator should not impose his or her own judgment or opinion on the issues for that of the parties. The mediator should refrain from directly informing the parties about the probable outcome of the lawsuit, the strength of their claims or defenses, the monetary value of the parties’ positions, or the cost of various options for settlement. Even though this is the general rule for mediator conduct, many mediators in the United States during court-annexed mediation processes may be asked or expected by the parties and their attorneys to use the evaluative mediation style. This means that the mediator will engage in litigation risk analysis that embraces a consideration of the strengths and weaknesses of each party’s position and even the expected outcome in future adjudication. Many times litigation attorneys prefer that the mediator make observations and express opinions about the possible outcome of the pending litigation which is the subject matter of the mediation.

II. Appropriate Use of Mediation

A. When Mediation Works Best

Mediation is generally appropriate when a negotiated resolution is desirable but

Parties are unable to reach agreement without the intervention of a third-party neutral.

There are many important considerations when the parties agree to mediate disputes.

Several to be considered are as follows:

1. Continuing relationships. It is often stated that mediation is best suited for parties that have a continuing relationship or who wish to maintain a relationship whether it be in business or family matters. This is because through mediation, parties are given a model for resolving future disputes. These may include family, employment/labor, health care, neighborhood and general business matters.

2. “One-shot” deals. Mediation has also proven successful in “one-shot” deals such as personal injury, worker’s compensation or consumer complaints which involve non-continuing relationships. Many businesses might prefer that a dispute with a client, injured party or employee remain private and out of the media. A confidential mediation which results in a resolution of the dispute accomplishes this goal.

3. Environmental, regulatory, and public policy disputes. Mediation has also been effective for handling environmental and regulatory disputes. These include disputes involving either public or private parties, or both. Mediation, or a related process called consensus building, is utilized in all types of public policy matters. Public policy consensus building involves disputes between governmental entities and citizens or multiple governmental entities and various other interest groups of stakeholders.

4. Small claims. Some disputes are better resolved outside the courtroom because of the small amounts in controversy and the overburdened small claims courts. Most small claims can be expeditiously handled through mediation without the parties having to resort to the judicial system. Law or graduate school mediation clinics as well as local community dispute resolution centers often mediate these types of cases at no cost to the parties. The process works effectively in disputes between neighbors or landlords and tenants.

5. Complex and multi-party litigation. Some cases are too large for the courts to handle well because they clog the state or federal court dockets for weeks or

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