Mediation is a voluntary Alternative Dispute Resolution (or “ADR”) process (meaning a process for resolution of disputes other than by formal litigation). In the mediation process, the parties to a dispute engage in a structured negotiation to resolve the dispute, with the assistance of a neutral, trained facilitator, referred to as the “mediator.” The mediator is selected by agreement of the parties, and he or she is retained jointly by the parties. The mediator’s fees are typically shared equally, although, like everything else in this form of ADR, the parties may agree otherwise.
Unlike an arbitrator, a mediator has no authority to impose an outcome of the dispute upon the parties. Instead, typically through an in-person mediation session in which the matters at issue are thoroughly discussed and explored, the mediator assists the parties in reaching a voluntary resolution of the dispute by helping them to understand each others’ needs and interests, as well as the risks and costs associated with formal litigation, and by assisting them in the negotiation process. A successful mediation results in a binding and enforceable agreement, voluntarily entered into by the parties themselves, which resolves the dispute without the necessity of a court or arbitrator resolving the dispute for them. Although in most cases the parties are represented by attorneys in the mediation process, they are not required to have attorney representation.
Mediation is appropriate for the resolution of almost any type of dispute, regardless of the number of parties, or the complexity of the issues.
[callout1]Codes of Conduct[/callout1]
Common elements of codes of conduct include:
[list_item]informing participants as to the process of mediation[/list_item]
[list_item]adopting a neutral stance[/list_item]
[list_item]revealing any potential conflicts of interest[/list_item]
[list_item]maintaining confidentiality within the bounds of the law[/list_item]
[list_item]mindfulness of the psychological and physical wellbeing of all participants[/list_item]
[list_item]directing participants to appropriate sources for legal advice[/list_item]
[list_item]engaging in ongoing training[/list_item]
[list_item]pracising only in those fields in which we have expertise[/list_item]
Evaluative mediation is focused on providing the parties with an evaluation of their case and directing them toward settlement. During an evaluative mediation process, when the parties agree that the mediator should do so, the mediator will express a view on what might be a fair or reasonable settlement. The Evaluative mediator has somewhat of an advisory role in that s/he evaluates the strengths and weaknesses of each side’s argument and makes some predictions about what would happen should they go to court. Facilitative and transformative mediators do not evaluate arguments or direct the parties to a particular settlement.
Facilitative mediators typically do not evaluate a case or direct the parties to a particular settlement. Instead, the Facilitative mediator facilitates the conversation. These mediators act as guardian of the process, not the content or the outcome. During a facilitative mediation session the parties in dispute control both what will be discussed and how their issues will be resolved. Unlike the transformative mediator, the facilitative mediator is focused on helping the parties find a resolution to their dispute and to that end, the facilitative mediator provides a structure and agenda for the discussion.