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Guide to Mediation

Mediation Definition

Mediation is, perhaps, the most widely utilized form of alternative dispute resolution. In simplest terms, it is the process of bringing two or more adverse parties together before a neutral third party called a mediator to discuss a resolution to their dispute. The mediator has no power to bind the parties, but rather, uses a variety of techniques to persuade the parties of the value of resolving the dispute through negotiation rather than at a trial or other adversarial proceeding.

The benefits of mediation are many and varied, and can include dramatic reductions in cost over litigating a case through trial, a way to keep the resolution of the dispute confidential (judgments and other judicial proceedings are generally public record but mediated settlements can be kept confidential), and a way for the parties to control their own destiny rather than leaving their fates in the hands of a judge or jury.

Although mediators may vary the process, the usual procedure is for the parties to meet face-to-face with the mediator and each other in an initial conference. During this conference, the mediator will usually explain the process, go over the confidential nature of the mediation process, and allow each side to make an opening remark regarding their position on the dispute. At this point, most mediators will break up the parties and meet with them individually. At this point, the mediator will usually try to dig deeper into each side's arguments, exposing the strengths and weaknesses of their cases. After this discussion, the mediator will usually ask for an offer the party wishes to have the mediator convey to the other side. The mediator will continue bouncing back and forth between the parties, trying to bring both sides closer and closer to a mutually agreeable resolution. If the parties can agree to terms, a mediated settlement agreement will generally be prepared in writing and signed by the parties as soon as possible (often before leaving the mediation). If no settlement is possible, the mediator will declare an impasse, and the case may proceed.

Matters discussed in mediation are confidential in order to facilitate a free exchange of offers. Use of confidential information obtained during mediation in any subsequent proceeding could result in a mistrial or other sanctions. Often, even if the case settles at mediation, the parties will opt to keep everything, including the terms of the settlement, confidential.

Information about Mediators

Mediators Associations and Societies

Mediators - Books

Mediators - Articles

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