Mediation is a form of alternative dispute resolution.  Often it is referred to as an extension of the negotiation process. I like to identify mediation as an interactive process, in which the parties have opportunity to be a part of the resolution of their own case/matter.

The mediator is an experienced attorney with considerable mediation training. The mediator is a neutral and impartial party. The primary role for the mediator is to facilitate the discussions and assist the participants to find creative solutions and common ground specific to their issues and circumstances. The mediator will assist the parties to clarify the issues, identify options and in some cases make suggestions for the parties to evaluate. Nevertheless, the parties are the final decision makers.

A written durable agreement that clearly outlines all the issues and their respective resolutions.  At the conclusion of a successful mediation, the parties will sign a written agreement.  Upon signing the agreement, both parties are assured the issues discussed during the mediation process are now resolved and will at a later date become an enforceable court order (signed by a judge). OTHER IMPORTANT CONSIDERATIONS ABOUT MEDIATION:

• Mediation is a confidential process.
• Mediation is centered on current conflicts with a future orientation.  Simply put, the mediator will direct the process and discourage blame or offense centered discussions – focusing the participants on creating a resolution acceptable to both parties that will allow them to move forward with their lives.
• Mediation is not litigation. The mediator does not provide legal advice.  Mediation does not determine who is right or wrong. All points of view are considered valid. The mediation process is conducted in a private setting with flexible scheduling. Consequently, parties in mediation are less likely to feel stressed and under pressure. The participants make all decisions, not an anonymous judge.
• Mediation is not counseling. Mediation recognizes the emotional issues in a conflict, but it focuses on finding a workable solution to the problems, rather than the cause of the problem.
• Mediation is faster, less expensive and less turbulent emotionally than the litigation process.
• The time it takes to complete mediation depends on how motivated the participants are to cooperate and discuss potential solutions to resolve their case. Participants have resolved their disputes in one session.  In many cases two or more sessions are required to bring resolution to all the issues. The participants generally set the pace, but the mediator will keep the process focused and moving forward.

Facilitative Mediation: Generally considered an “interest” based process where the participants themselves construct their agreement through/with the assistance of the mediator. The mediator is a neutral party.  The mediator is there to initially assist the parties through questions and answers to clarify their disputes and/or issues. Thereafter the mediator’s directive is to facilitate a structured discussion between the participants.  The mediator will clarify communications so that all participants have the benefit of understanding the discussion.  The mediator will assist and encourage the parties to consider and reach, through their discussions, a durable agreement.

Evaluative Mediation:  Generally this method utilizes the same basic techniques as the facilitative style above, however; the evaluative mediator is often recognized as a person experienced in the subject matter (family law, personal injury, etc.) in dispute.  The mediator will often evaluate the issues (disputes) and provide assessments, recommendations and in some cases even settlement terms for the participants to consider.   The mediator recognizes (and often points out) the possible outcomes in future litigation and trial.  Thereafter, the participants are directed to fully consider the risks and costs. Nevertheless, in both mediation styles the participants are the final decision makers.

Joint Approach: The participants will generally meet with the mediator together (jointly) in one room or setting.  Unless the mediator determines the participants should be caucused (separated) for a brief period, the process calls for direct participation and communication with all participants. The benefit of this approach is for the participants to gain clarity and understanding of the other’s positions and interests, which thereafter leads to a cooperative resolution.

Shuttle Approach:  In this approach the participants are in separate rooms and generally remain separated throughout the mediation process.  The mediator is primarily focused on the pragmatic discussions directed to reach a settlement.  This approach affords the participants to be in a separate space and hopefully free from any emotional dynamics that may hinder full participation.