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<xTITLE>What is Mediation?</xTITLE>

What is Mediation?

November 2000
What is mediation?

Central to mediation is the concept of "informed consent." So long as participants understand the nature of a contemplated mediation process and effectively consent to participate in the described process, virtually any mediation process is possible and appropriate. In terms of generally describing the mediation process, the following concepts may be helpful.

Mediation Defined: Facilitated Communications for Agreement or Facilitated Negotiation


You can end the process at any time for any reason, or no reason. If you are thinking of leaving, you are encouraged you to speak up and let the mediator know why. The reasons that you are thinking of leaving can become conditions for your continued participation. For example, if you are thinking of leaving because you do not feel heard, presumably you would continue in mediation if you felt heard.

You are encouraged to work together to solve your problem(s) and to reach what you perceive to be your fairest and most constructive agreement.

You have complete decision-making power. Each of you has a veto over each and every provision of any mediated agreement. Nothing can be imposed on you.

Mediation is confidential, to the extent you desire, be that by statute, contract, rules of evidence or privilege. Mediation discussions and all materials developed for a mediation are not admissible in any subsequent court or contested proceedings, except for a finalized and signed mediated agreement for enforcement purposes.

The mediation process offers a full opportunity to obtain and incorporate legal and other expert information and advice. Individual or mutual experts can be retained. Obtained expert information can be designated as either confidential to the mediation or, if you desire, as admissible in any subsequent contested proceeding. Expert advice is never determinative in mediation. You, as parties, always retain decision-making power. Mediators are bound to encourage parties to obtain legal counsel and to have any mediated agreement involving legal issues reviewed by independent legal counsel prior to signing. Whether legal advice is sought is, ultimately, a decision of each participant.

Impartial, Neutral, Balanced and Safe
The mediator has an equal and balanced responsibility to assist each mediating party and cannot favor the interests of any one party over another, nor should the mediator favor a particular result in the mediation. The mediator's role is to ensure that parties reach agreements in a voluntarily and informed manner, and not as a result of coercion or intimidation. If you ever feel that the mediator is favoring one party over another, or any particular result over another, or if you should ever feel intimidated or otherwise unsafe in mediation, speak up. The mediation should not continue unless you come to be satisfied in all of these regards.

Self-Responsible and Satisfying
Based upon having actively resolved your own conflict, participant satisfaction, likelihood of compliance and self-esteem are found by research to be elevated through mediation.

Q: What Are the Benefits of Mediation?

A: People in disputes who are considering using mediation as a way to resolve their differences often want to know what the process offers. While mediation can not guarantee specific results, there are trends that are characteristic of mediation. Below is a list of some of the benefits of mediation, broadly considered. Mediation generally produces or promotes:

Economical Decisions
Mediation is generally less expensive when contrasted to the expense of litigation or other forms of fighting.

Rapid Settlements
In an era when it may take as long as a year to get a court date, and multiple years if a case is appealed, the mediation alternative often provides a more timely way of resolving disputes. When parties want to get on with business or their lives, mediation may be desirable as a means of producing rapid results.

Mutually Satisfactory Outcomes
Parties are generally more satisfied with solutions that have been mutually agreed upon, as opposed to solutions that are imposed by a third party decision-maker.

High Rate of Compliance
Parties who have reached their own agreement in mediation are also generally more likely to follow through and comply with its terms than those whose resolution has been imposed by a third party decision-maker.

Comprehensive and Customized Agreements
Mediated settlements are able to address both legal and extralegal issues. Mediated agreements often cover procedural and psychological issues that are not necessarily susceptible to legal determination. The parties can tailor their settlement to their particular situation.

Greater Degree of Control and Predictability of Outcome
Parties who negotiate their own settlements have more control over the outcome of their dispute. Gains and losses are more predictable in a mediated settlement than they would be if a case is arbitrated or adjudicated.

Personal Empowerment
People who negotiate their own settlements often feel more powerful than those who use surrogate advocates, such as lawyers, to represent them. Mediation negotiations can provide a forum for learning about and exercising personal power or influence.

Preservation of an Ongoing Relationship or Termination of a Relationship in a More Amicable Way
Many disputes occur in the context of relationships that will continue over future years. A mediated settlement that addresses all parties' interests can often preserve a working relationship in ways that would not be possible in a win/lose decision-making procedure. Mediation can also make the termination of a relationship more amicable.

Workable and Implementable Decisions
Parties who mediate their differences are able to attend to the fine details of implementation. Negotiated or mediated agreements can include specially tailored procedures for how the decisions will be carried out. This fact often enhances the likelihood that parties will actually comply with the terms of the settlement.

Agreements that are Better than Simple Compromises or Win/Lose Outcomes
Interest-based mediated negotiations can result in settlements that are more satisfactory to all parties than simple compromise decisions.

Decisions that Hold Up Over Time
Mediated settlements tend to hold up over time, and if a later dispute results, the parties are more likely to utilize a cooperative forum of problem-solving to resolve their differences than to pursue an adversarial approach.

Q: What is the role of the mediator?

A: The mediator's ultimate role is to do anything and everything necessary to assist parties to reach agreement. In serving this ultimate end, the mediator may take on any or all of the following roles:

The mediator may assist in contacting the other party(ies) to arrange for an introductory meeting.

The mediator educates the parties about the mediation process, other conflict resolution alternatives, issues that are typically addressed, options and principles that may be considered, research, court standards, etc.

Communication Facilitator
The mediator seeks to ensure that each party is fully heard in the mediation process.

When necessary, the mediator can help by rephrasing or reframing communications so that they are better understood and received.

Questioner and Clarifier
The mediator probes issues and confirms understandings to ensure that the participants and the mediator have a full understanding.

Process Advisor
The mediator comes to be trusted to suggest procedures for making progress in mediation discussions, which may include caucus meetings, consultation with outside legal counsel and consultation with substantive experts.

Angel of Realities
The mediator may exercise his or her discretion to play devil's advocate with one or both parties as to the practicality of solutions they are considering or the extent to which certain options are consistent with participants' stated goals, interests and positive intentions.

By offering options for considerations, stimulating new perspectives and offering reference points for consideration, mediator serves as a stimulant for the parties reaching agreement.

Responsible Detail Person
The mediator manages and keeps track of all necessary information, writes up the parties' agreement, and may assist the parties to implement their agreement.

Q: How Does Online Mediation Work?

A: To begin the Online Mediation process, register your disagreement by completing the confidential disagreement information form. This form is only seen by the participant and by the assigned mediator.

Online Mediators will contact the other participant(s) and seek to obtain their agreement to online mediation. No one can be forced to mediate. Online mediation is a voluntary process. Any participant can end the process at any time, for any reason, or no reason. If the responding participant(s) indicate that they do not want to mediate, or if there is no response within 7 days, Online Mediators will notify the registering participant that the online mediation will not take place. If the responding participant indicates that they are prepared to mediate, they will also complete a confidential disagreement information form that will be released to the Online Mediator only.

If all participants agree to Online Mediation, an Online Mediator is assigned and will contact each participant. From the point of initial contact with all participants, the online mediator will assist participants to reach agreement.

When the participants reach agreement, an agreement form will be completed. As part of completing this form, participants may determine whether they intend for their agreement to be legally enforceable or not.

Following the completion of the online mediation process, each participant is asked to complete a short evaluation form. This form will include evaluation of the online mediator with regard to responsiveness, courtesy and effectiveness. This form will also include evaluation of the online mediation program itself.