What is Mediation?

Mediation is one of several forms of alternative dispute resolution (ADR). Mediation is effectively a negotiation that is facilitated by a third party. Unlike arbitration, where the third party acts as a judge and makes a decision, mediation does not involve decisions made by the neutral party.

Mediators try to help the parties to a dispute find common ground and reach a decision that everyone is comfortable with. Mediators oversee the exchange of information and the bargaining process. They may offer creative solutions and assist in drafting a final settlement agreement. Mediators also interpret concerns, relay information between parties, frame issues, and define problems.

Although mediation is usually voluntary, sometimes statutes, rules, or court orders can command mediation to take place. Mediations are most commonly ordered in the context of family, small claims, housing, and sometimes criminal courts.

Mediation Cases: What Cases are Eligible for Mediation?

Mediation is possible in most non-criminal matters, though at times even criminal cases can result in mediation. Non-violent disputes, such as those involving verbal harassment, can sometimes be successfully resolved in mediation. Claims with little or no legal merit may also be referred to mediation, since courts may not be willing or able to provide an actionable judgment in these situations.

Mediation frequently arises where there are family conflicts. Divorce and child custody suits, disputes between family members, neighbors, business partners, landlords and tenants, labor unions and management, and other conflicts between parties that have a preexisting and ongoing relationship often benefit from mediation. Some jurisdictions require mediation when the dispute relates to child custody or similar issues.

What are the Disadvantages of Mediation?

Although there are many reasons that mediation can be helpful, it is not without its drawbacks. Within the context of a courtroom there are procedures and tools that allow one party to compel another to testify or produce evidence. The goal of the procedural rules in court is to reach a fair and impartial determination about who is right and who is wrong about an issue. In the context of mediation fairness is less central. Mediators want resolutions that both parties are willing to accept, which is a different thing from fairness.

Mediation's lack of rules mean that a more aggressive or sophisticated party can dominate proceedings. Although mediators have skill and training in restoring some balance, their assistance would be unnecessary in a courtroom, where procedural rules help ensure that both parties have equal opportunities to present their views. Even with a skilled and sensitive mediator some parties will have difficulty expressing their positions in mediation. Victims of domestic violence, for example, may find it difficult or impossible to assert themselves in the informal setting of mediation.