Erin Johnston, president of CFR Mediation, answers some common questions about mediation.
What is mediation?Mediation, a type of alternative dispute resolution (ADR), is a method of resolving disputes in which individuals or groups in conflict meet with a neutral person (mediator) who assists them reach an agreement that resolves the issues in conflict. Mediation differs from arbitration, another form of ADR, in that the mediator remains neutral and does not judge, determine merit, or favor one side over the other.
The mediation is a confidential voluntary process, where all agreements are reached by those most impacted by the dispute and the outcome. Mediated solutions are typically seen as “win-win” solutions to conflicts or disputes. Furthermore, as the disputants reach all agreements voluntarily, mediated agreements are generally considered binding.
What happens in a mediation process?
Typically in a mediation process all disputants meet with the mediator together to collaboratively work out an effective resolution. Mediation works by having those in dispute focus on the desired outcomes or resolution of the dispute, as opposed to the emotional-based “positions” that so often direct personal approaches to conflict.
Do mediators make decisions on disputes?
No. In true mediation the mediator remains neutral throughout the process. Mediators facilitate resolution; they do not judge, determine, advise, or advocate a resolution or decision. The disputants make all decisions and agreements reached in mediation.
How do mediators charge? Who pays for the mediator?
Charges for mediation differ among mediators and programs. Many charge hourly for mediation sessions as well as any additional administration time spent on the case. Often the fee is split evenly among the participants in mediation to prevent any mediator bias (even the appearance of mediator bias should be guarded against in mediation).
What if the two parties in a mediation can't agree?
If the disputants are not able to agree in mediation they are free to pursue other avenues of dispute resolution including arbitration or litigation. The mediator is ethically bound not to act as legal counsel or decision maker in the process. In addition since mediation is confidential, the issues and particulars discussed in the process can not be used in future dispute resolution processes.
What are some common business situations when a mediator might be called in?
Mediators can be called in for most business situations including:
- Disputes Among Employees
- Disputes with Management
- Sexual Harassment Complaints
- ADA Compliance Issues
- Employee Grievances
- Workplace Bullying
- Hostile Workplace Issues
- Discrimination Complaints
- Business Partnerships
- Family Business Disputes
- Contract Disputes
Mediation is a particularly efficient and effective means of addressing most business and workplace disputes. The voluntary and confidential nature levels the playing field and sees all disputants as equals in the resolution process.
Is mediation ever mandated in a contract?
Mediation can be mandated in a contract as a “first level” intervention to conflict or dispute – however a “mediated” resolution cannot be mandated, as the mediated resolutions are voluntary. Arbitration is quite commonly ordered in contracts, but the arbitrator may determine the resolution of the dispute.
Even in cases where mediation is not mandated by contract, disputants may agree to mediate prior to evoking the conflict resolution clauses in a contract. Once a resolution is agreed to in mediation, there are no longer any issues to arbitrate or litigate.
Back to Mediation for Business Disputes
Erin Johnston MSW, LCSW has been working in the field of conflict resolution and social work for 20 years. She maintains a private psychotherapy practice in Chicago and runs CFR Mediation, a mediation company with offices throughout the US; providing mediation for all types of disputes including divorce, family, business, civil, and workplace conflicts.
