What is Mediation?

Mediation is an effective, affordable, non-adversarial problem-solving process in which a neutral skilled professional (“the mediator”) helps parties involved in a dispute to resolve that conflict.  In many areas of litigation today, mediation has become the preferred method of settling disputes.  Increasingly, courts and tribunals refuse to hear cases unless the parties have first tried to resolve their differences through mediation.

For example, most states now require some sort of mediation before local courts will hear child custody or visitation disputes. It is also becoming increasingly common for commercial enterprises to use mediation as an established process for resolving employer-employee disputes. Many contracts include a mediation clause as well.

Mediation involves bringing the parties in conflict together. The mediator works with those parties to facilitate productive discussion designed to identify underlying interests and to encourage the parties to work together to find the best solution to resolving the conflict at hand.

Litigation differs from mediation because litigation is about legal positions and lawyers, where mediation is about reconciling interests and the clients or parties.  In litigation, the attorneys have free reign to speak, at almost any time, while the litigants participate only as a witness.  Mediation, by contrast, puts the parties center stage, where a skilled neutral person encourages them to work together to solve the problem.

A hallmark of mediation is the self determination of the parties, the ones who know most about the conflict and its causes.  Generally speaking, litigation looks to the past, where mediation involves looking to the future.  In litigation, the court ends the dispute one way or another.  In mediation, it is the parties that both end the dispute and resolve it in a way that is acceptable to both parties.