The process of mediation is meant to offer a non-adversarial path to resolving a dispute. While each side might not achieve all of their objectives, the goal is to walk away with a compromise that is acceptable to each of them. Mediation works only if both sides are genuinely interested in building a deal and participate fully in the process. They should be able to contain their emotions so that they can behave patiently and respectfully toward each other. If the hostility between the two sides is too great, they may need to pursue litigation instead.
To guide each side in reaching a solution, the mediator will help them understand the relative strengths and weaknesses of their position. The mediator does not have the power to make a binding decision, and they cannot advocate for one side or the other. A mediator also cannot force the two sides to reach an agreement. That responsibility rests entirely on the parties.
How Arbitration Is Different
A key difference between arbitration and mediation is that an arbitrator generally can make a binding decision, while a mediator cannot.
Steps in Mediation
The mediator will start the conversation by introducing the various people who are involved and explaining any rules that will apply to the process. They may provide an overview of the main objectives that each side is seeking. Then, each side will have an opportunity to explain their position. They may discuss the facts resulting in the dispute, as well as suggestions for a solution. During these opening statements, each side cannot interrupt the other side or challenge their position.
Once each side has outlined their position, the mediator will try to facilitate the discussion by urging the parties to talk directly to each other about the issues. Sometimes the mediator can help them focus the conversation by eliminating issues that are not actually disputed. Following the joint discussion, each side will have an opportunity to meet separately with the mediator without the presence of the other side. The mediator can go over their options in more detail and offer suggestions for a resolution. Sometimes each side will meet with the mediator multiple times throughout the mediation. These meetings form the core of the mediation process.
The next step involves the parties meeting directly again in an effort to finalize the negotiations. If the mediation concludes successfully, they may need to sign an agreement. The mediator may draft the agreement and present it to the parties, and each side can ask a lawyer to review the agreement. Once the parties sign it, the agreement will become a legally binding contract that resolves their dispute.
If the mediation does not conclude successfully, the mediator will explain the next steps that the parties can consider. They might try mediation again or pursue arbitration or litigation.
Using a Lawyer in Mediation
As the description above suggests, you do not necessarily need the assistance of a lawyer in mediation. The process is non-adversarial and relatively informal, so the skills and sophistication of a professional advocate may not be useful. Also, mediation often involves a relatively minor dispute. However, if important issues are at stake, you may want to ask a lawyer for advice on your situation before going through mediation, and you may want to ask the lawyer to review any agreement that results from mediation before you sign it.
Not every lawyer will bring the right mindset to mediation. You should make sure to choose a lawyer who believes in the process and understands the importance of compromise. Ideally, the lawyer should have worked with clients in mediation before. You should explain whether you will need the lawyer to attend mediation sessions or whether you simply will need their help in preparing for mediation or reviewing the agreement.
Some lawyers receive training as mediators, while other lawyers receive training in representing clients during mediation. You should understand the distinction between these types of training. Generally, training in representing clients during mediation is more useful.
Costs of Mediation
If you hire an attorney to assist you with mediation, you probably will need to pay them an hourly fee. On the other hand, if you do not hire an attorney, mediation can be relatively inexpensive. Many non-profit organizations offer free mediation services or services for a very low cost. Courts and bar associations may provide these services as well, since they would prefer to reduce the burden on courts by resolving disputes outside litigation. These mediators generally will be attorneys or retired judges. Law school clinics also may offer free mediation services. Professors supervise these clinics, so you may get the benefit of an outstanding legal mind.
Paying a mediator probably will be much cheaper than the costs of litigation.
Some disputes involve high stakes or a certain level of sophistication. In these cases, a free mediator may not be good enough. Some areas of the country also do not offer free mediation services. If you need to hire a paid mediator, they probably will cost hundreds of dollars per hour. You might urge the other party to split the mediator fees with you. If they are reluctant or do not seem to be participating in mediation in good faith, you might point out that the alternative of litigation would involve much more time, expense, and risk. (Mediation is likely to fail if both parties do not participate in good faith.)