Mediation is a process of dispute resolution that involves a trained third party who works with both sides of the dispute in an informal discussion, to help resolve the dispute. The mediation process is also non-binding; neither party is required to accept the mediator's proposed agreement. The parties to a mediation may or may not have an attorney present; attorneys are advisors and not participants in the mediation process. Mediation is used in many business disputes, including labor negotiations, business contracts, and employment disputes.
Although mediation is informal, the process is fairly well defined. Here is a brief discussion of a typical mediation process:
- The mediator begins by welcoming the parties and introducing himself/herself. The mediator then outlines the process and the roles of the mediator, the parties, and attorneys (if present). The mediator ends the introduction by explaining the ground rules for the process.
- The mediator then asks for statements from each party. Both parties have an opportunity to tell their story about what happened, from their viewpoint. Often, these stories are emotional. The mediator may ask clarifying questions, but typically the parties do not question each other.
- After both parties have spoken, the mediator may ask more questions, both to clarify the issues and to provide the other party with greater understanding.
- At this point, the mediator may ask the parties to caucus (separate for the purpose of discussion). The mediator talks with each party, proposing solutions, trying out scenarios, trying to get commitment to a settlement by both parties. The mediator goes back and forth between the parties during this time, clearing up misunderstandings, and carrying information, proposals, and points of agreement.
- The mediator works to find points of agreement between the parties, in an effort to reach an agreement. At some point, the mediator may pose a final agreement for the parties and urge them to accept.
Benefits and Drawbacks of Mediation
Here is a list of the pros and cons of mediation as a form of alternative dispute resolution.
Benefits of Mediation:
- The process can solve many disputes in a short time; most mediation sessions are only one or two days long.
- Mediation is less expensively than litigation.
- Mediation allows the parties to deal directly with each other, rather than relying on attorneys.
Drawbacks of Mediation:
- Because the decision of the mediator is not binding, the parties must be committed to reaching an agreement. If one or more parties is not ready to agree, the mediation process is frustrating and waste of time.
- Sometimes, attorneys must still be involved, which increases the cost of the mediation.
- A lot depends on the skill of the mediator. An unskilled or poorly trained mediator can do more damage than help.
