Mediation is a type of dispute resolution. By understanding the mediation process, you can be effective in resolving your dispute and saving yourself legal fees. It is not adversarial litigation like a trial. With mediation, negotiation and compromise are more common than resistance and blame. Mediation may be a compromise of each of the parties’ feelings or needs regarding the dispute when finding resolution.


Mediation is appropriate when the following factors are present:


  1. A desire not to spend large sums on legal fees
  2. When the parties are at an impasse
  3. When there is disagreement about the value involved in the legal matter
  4. When both parties really want a third party opinion about their claims
  5. When a quicker resolution is desired or required
  6. When a confidential settlement is desired


As a general rule, when both parties really believe that their dispute involves a difference of opinion regarding value or ownership and are acting responsibly when evaluating one another’s claims, mediation might help.


There are several surprising factors for when mediation would be inappropriate such as:


  1. Where there is an outright refusal of the parties to consider any resolution or compromise
  2. Where the parties want to embarrass the others in a public forum, or to call attention to the lawsuit
  3. When the parties actually want a third party to decide the outcome for them (versus an opinion)
  4. Where a quick resolution is not desired
  5. Where principle is being determined


If one of these is a major motivating factor in the litigation, the parties may be wasting their time and resources in mediation.


The number one goal for any party in mediation is to resolve the dispute in a manner that is somewhat fair for both parties. As such, a professional manner is needed before and during the process. One party calling the members of the other party names or making derogatory remarks and snide comments are unnecessary and do not promote compromise.


Usually at the beginning of the mediation, all parties are asked to explain their situation, in their own words, to the mediator. This is sometimes done alternatively, and out of the presence of the other side. Sometimes, where the parties do not seem particularly antagonistic, the mediator may require both parties to be present for the other's opening remarks. Often, there may be repeated sessions in which both parties are together throughout the day.

Typically, after the opening statement, the mediator does not make up his/her mind about the proceedings. Instead, at the end of the opening proceedings, the mediator should attempt to find some common grounds, so as to eliminate some items which the parties may claim are in dispute, but which are not. In this manner, the mediator's efforts can be focused on the key points which might result in settlement.


As the mediation progresses, each party should expect to be faced with pointed questions about the most important parts of the case. Many people feel comfortable with the mediation until they are asked to focus on the point(s) that are most important to them. All of a sudden, they become protective and defensive. This type of attitude might work in the adversarial proceedings, but simply will not produce results in mediation.


It is helpful, going into these proceedings, that each party should know that these key point(s) may be the focus of the mediator. Each party should expect that they will be asked specific questions about their positions on such points. In fact, it is helpful to practice with your attorney, and permit him/her to quiz you on the key points and how you would resolve them, if asked. It should also be apparent that if you leave the mediation relieved that you did not have to compromise on several issues that you felt were important, the mediation was probably not very successful.


The mediation process is specifically designed to place the attorneys for the parties in the background. It is also designed to have the clients, in their own words, answer certain questions and to give their personal views about what is important to them. It is designed to be free from evidentiary rules (though evidentiary rules still govern the admission of certain evidence in evaluating the overall case) and is designed to be free from intensive cross-examination.


With these inherent designs in mediation, the attorney’s role may not be forceful, but is still extremely valuable. The attorney can help the mediator understand the legal issues of your case and aid the mediator in properly evaluating the case and facilitate a settlement. Also, there may be points of law that the mediator did not know about. The lawyer might be able to demonstrate a more favorable outcome based on a certain reading of the law and enhance the settlement.


While the lawyers’ actions may be unexpected toward the party they represent, any party facing mediation should carefully consider their non-adversarial role. It is also important to remember that the lawyer is not giving up any of your rights in mediation. Because of the informal nature of the proceedings, many things can be said which might not be able to be addressed during a trial. Sometimes this relaxation of the formal rules helps to promote settlement, because it allows a mediator to focus on the real issues crucial to each party.


Mediation can make both parties focus on the strong parts of the cases and deal extensively with the weaknesses. It can also save money when trying to resolve the dispute and is an excellent tool when both parties want to settle and save money.


If you think you’d like to use mediation to resolve your dispute, we’re here to help. For any questions, please contact member services and be paired with an attorney.