What Is Mediation?

Mediation involves working with a trained mediator who helps to facilitate communication between parties involved in a legal dispute.

The purpose of mediation is to help the parties find a compromise so they can avoid going to court and asking a judge or a jury to decide their issues.

In many cases, mediation is voluntary. The parties involved in a civil case decide that they want to work with a mediator to try to settle their issues. Sometimes, however, a court will order the parties involved in litigation to go to mediation to try to resolve certain contested matters that have arisen during their legal proceedings.

Mediation can be used in a wide variety of legal cases. Some examples of situations where mediation may be used include:

• Divorce cases where the spouses want an uncontested divorce. To get one, they must resolve issues on their own related to child custody, division of property and spousal and child support. If they cannot compromise on their own, a mediator can help. Family law cases involving unmarried parents and child custody or child support can also be resolved through mediation.
• Personal injury claims where the parties want to negotiate a settlement but can’t agree on how much compensation is appropriate or what other legal remedies a defendant should provide to a plaintiff
• Breach of contract claims where the parties wish to come to an agreement on how to address a failure to fulfill a contractual agreement.
• Some criminal court programs or neighborhood justice programs

Mediation tends to work best when all of the parties involved are committed to finding a resolution. Otherwise, even with the help of a mediator, it may be difficult or impossible for them to come to a consensus and determine together how their legal issues should be addressed.

The mediation process is different in every situation and for each different type of case because the process is personalized to the parties involved.

A trained mediator always guides the mediation and is usually paid by the parties involved in the legal dispute. Mediators usually charge an hourly rate. Unlike a judge or jury, their goal is not to make decisions for the parties, and they cannot issue binding orders affecting those involved in the mediation process.

Instead, the goal of the mediator is to guide a discussion between the parties. The mediator leads in the exchange of information and helps the parties through an effective bargaining process.

The mediator’s expertise is used to enable the parties to communicate more effectively, to frame and reframe issues so they can be more easily decided, to identify creative solutions to complex problems and to help those involved in the case set realistic expectations and find common ground.

Mediators can assist in drafting a settlement agreement when the parties to the dispute do find a compromise.

However, mediators do not make decisions for you, and they can’t force you to compromise when you are involved in the mediation process. However, they are trained to be effective at assisting you in identifying out-of-court resolutions that will work for you.

There are both advantages and disadvantages to mediation. Some of the big benefits include the following:

• The process can be less stressful than court proceedings because you don’t have to worry about being bound to comply with an outcome you don’t like
• The process is less acrimonious than court proceedings. The parties work together to find an agreement instead of fighting against each other. This can be especially helpful in family law matters when divorcing spouses need to continue to co-parent and a bitter divorce would be more stressful for children
• The process can yield better results. The parties to the mediation can decide what is most important to them and try to incorporate that into an agreement. And since neither party must agree to resolve their claim in mediation, the final outcome must be one that both parties are at least OK with. Otherwise, they simply wouldn’t agree to it
• Mediation can be less expensive and faster than a court case. You can save time and money if you do not have to go through an entire trial when you successfully resolve your claim during the mediation process

There are also some big downsides:

• Mediators do not have the same authority judges do. They cannot, for example, hold someone in contempt of court in a divorce proceeding if that person is hiding assets in violation of a court order
• You must negotiate on your own behalf without the assistance of a lawyer in the room
• There’s no guarantee mediation will be successful. You could spend money and time on mediation and not come to an agreement in the end
• You could get a worse outcome than you would in court. If you don’t fully understand your rights and you agree to a settlement that’s not in your favor, you may end up with a less beneficial outcome than if your case had been resolved in court

An experienced attorney can work with you during the mediation process to help you maximize the benefits and limit the downsides. If you are considering mediation, you should have an attorney representing you who is experienced in this method of alternative dispute resolution.