Mediation is a non-binding procedure conducted before a neutral third party trained to resolve disputes. Mediators have no power to make decisions or rulings but rather try to get the parties to reach agreement. Mediators and mediation organizations have a very high rate of resolving disputes without the necessity of costly litigation. The selection of a good mediator is extremely important. It is helpful if your attorney knows the reputations of mediators in your community and is proactive in picking someone hopefully one with whom he or she has had success before. Mediators use a form of “shuttle diplomacy” is used with a series of caucuses with each party outside of the presence of the other party. It used to be common to start off the mediation with all of the parties and their attorneys gathered together in a conference room where each party would tell their side of the story. Now many mediators skip this step because in can result in confrontations with parties in effect calling each other liars which escalates rather than deescalates the dispute. Most mediators go straight to caucuses. The mediator will go back and forth as many times as it takes to get resolution. It is important to note that although the mediator does not have the power to bind the parties, agreements reached between the parties during the mediation process are binding as long as they are reduced to writing. This should be done before the parties leave the room to prevent a change of mind after the mediation is over. If a party refuses to participate in mediation there is a penalty in the form of a denial of the right to recover attorneys frees even if they are ultimately the prevailing party in subsequent arbitration or court proceedings.
Among the advantages of mediation are that the proceedings are less formal, less adversarial, less threatening and less stressful than either arbitration or litigation. Sometimes cited as a disadvantage of mediation is that it requires a willingness on the part of both parties to settle which usually involves some compromise. Where one or both parties dig their heels in and are uncompromising it is difficult for the mediator to facilitate a resolution. Skilled mediators are good at persuading even very stubborn parties that it may be in their best interest to settle and avoid costly arbitration or litigation. Mediations are considered confidential and statements made during mediation are not admissible into evidence in subsequent arbitration or court proceedings.