Mediation is a powerful tool for resolving disputes collaboratively. It involves the conflicting parties and a neutral, trained party who helps the parties reach an agreement that puts their disagreement behind them.
Mediators are used in a wide range of conflicts, including businesses involved in disputes with customers, suppliers, and between co-owners. They are instrumental when the parties’ good-faith efforts to solve disagreements have failed. Still, they’re genuinely interested in preventing further conflict and the time, energy, and expense that comes with it. Our friends at Focus Law LA discuss what mediation is in depth below.
What Is Mediation?
Mediation is about creating a space for mutual respect, understanding, and open communication. An impartial facilitator experienced in negotiation and communication guides the parties through a structured process to address the issues.
Unlike a trial, mediation is informal and voluntary. Though the mediator probably has a system or process concerning how they and the parties interact, there are no rules of evidence or testimony—just the opposite. To encourage open communications, anything a party states or reveals during a mediation session is confidential and cannot be disclosed to others or used during litigation.
Why Use Mediation?
Mediation and litigation have one thing in common—they resolve disputes. Litigation will be more expensive and time-consuming, and the judge or jury chooses the outcome. Mediation is unlike litigation in that the parties maintain control of the resolution because no matter what a mediator says or does, there’s no agreement without the parties’ consent.
Negotiations are normally the first tool parties use to try to end a conflict. If that hasn’t worked, the parties could start legal action. That sometimes brings pressure that may make compromise and agreement more likely.
The risks and costs of litigation (in time, energy, and money) that were once abstract become real, which may motivate one or both parties to be more flexible in what they demand or accept. The parties could skip that step and go directly to mediation or try it if the snowballing costs of a legal case fail to get them to end the case.
Mediation emphasizes meeting the parties’ needs, not fulfilling positions. This isn’t scorekeeping. It’s doing what’s in both parties’ interests as much as possible, given the situation.
How Does The Mediation Process Work?
There are different steps, and mediators have their own style and approach to mediation sessions. Generally, a mediation session involves the following:
- Setting the stage: The mediator sets the ground rules and enforces them. The goal is a safe atmosphere where the parties can be open and honest without attacking or antagonizing each other. There’s usually a joint session where both sides lay out what they see as key facts, set out, and explain their bargaining positions
- Problem-solving: The mediator may help the parties identify vital interests, issues, and potential solutions. This could involve separate, private meetings with the mediator to discuss concerns and options. A party may tell the mediator something if they don’t disclose it to the other side. This helps the mediator understand the party’s position and what they may be willing to propose or accept. A mediator could be a creative problem solver and propose something neither side has discussed or considered. Parties may ask a mediator for suggestions. Some may give them, and others may refuse because they see this as something the parties must figure out. Often, there are several open issues. The parties may start with less contentious issues, resolve them, and build momentum toward resolving more important ones
- Finalizing the deal: The parties may conclude some issues but leave others open, which could be the subject of future mediation. If the parties wrap up all the problems, they should continue until a written agreement is negotiated and signed. It’s best this be done while “the iron is hot” and the responsible parties are together and communicating. This doesn’t always happen, but it’s something to shoot for
If your business is at an impasse regarding resolving an important dispute, your corporate litigation lawyer may help you negotiate a solution or suggest a mediator who can help.