Mediation is an informal process in which an impartial third party (the mediator), who is not representing the interests of either side, assists parties in a dispute to reach their own agreement. The mediator does not impose a solution on the parties. With the facilitation and assistance of the mediator, parties work together to negotiate and resolve the dispute.

Mediation has several potential benefits:

1. Preserving a working relationship

Mediation can help preserve a working relationship between parties with ongoing connections to one another, that is often destroyed through litigation in court. This is especially important to consider when the dispute arises between family members, in Family Law or Estate disputes. Because mediation is less adversarial than the court process it can help preserve the ability to relate to one another constructively in the future.

2. Less costly

A more summary and streamlined process can be tailored to the needs and interests of the parties, saving the expense of paying lawyers to prepare for and attend multiple court dates.  The cost of a mediator, and any experts needed to assist with tax or valuation issues, is normally shared equally instead of each party paying their own lawyer and experts.  This can save thousands of dollars in legal expenses required in the traditional court process.

3. Faster than court

Mediation usually takes months instead of years.  Parties and their lawyers can be much more flexible in setting dates and agreeing on how important facts will be presented, without being tied to “one size fits all” court processes, timetables and rules about judicial conferences and steps.  The same neutral third party is involved throughout a mediation or arbitration, whereas multiple judges may be involved at various steps in a court process.

4. Maintains privacy

Filings in a court proceeding are generally public documents, which can include embarrassing information about the parties and their history, their financial details or other private matters. A mediation or arbitration process happens outside of the court system, and negotiations held in that setting are “off the record” and “without prejudice” discussions that cannot be used in court.

Risks of mediation

While there are significant benefits to mediation, it is only appropriate for those parties who are interested in listening and trying to understand the other's point of view. If mediation is simply viewed as a strategy to persuade the other party to do what you want, without a willingness to compromise and craft an outcome that is beneficial for both parties, it is not likely to be successful.

Also, there are some circumstances where mediation is not appropriate. For example, where there is a significant power imbalance between the disputing parties which cannot be remedied by the way meetings are structured, or if one party has been victimized by another (such as domestic violence or sexual misconduct), mediation carries a potential risk of aggravating the power imbalance or victimization.

It is not impossible to mediate in such situations, but precautions must be taken to address those concerns and fears, such as ensuring that each party has legal representation, keeping people in separate rooms rather than face to face, and having individuals arrive and leave at different times.

The mediator’s role

The role of the mediator is to control and facilitate the mediation process, but not the actual substance of any agreement that is reached. The mediator has no power to dictate the outcome or to impose a final decision on anyone. Any agreement that is reached must be consensual.

Should communication break down between the parties, the mediator will assist in removing the communication barriers and attempt to get the parties back to discussing their issues in a more productive manner. The mediator will intervene to help the parties narrow the issues in the dispute, uncover underlying interests and help generate alternative options as to how the dispute can be resolved. At the end of the day, however, it is the responsibility of the parties to negotiate their own agreement, and the mediator can only provide assistance and guidance in that negotiation.

The mediator will work to ensure that any resolution to the dispute is reached by the parties freely and voluntarily, without undue influence and on the basis of informed consent. In carrying out that role, there are different approaches a mediator can take:

  • Facilitative – the mediator assists in making the conversation and negotiation between the parties constructive, by listening carefully, reframing and filtering emotional and challenging conversations, and helping the parties to focus on their interests and how to move forward. It usually includes some “education” about the issues the parties need to resolve and the normal parameters within which they should be negotiating. This approach is outcome-oriented, aimed at getting the parties to reach an agreement and settle their dispute as efficiently as possible. It is the most common approach used by a majority of mediators.
  • Evaluative – the mediator uses his/her specific, professional skill-set and experience to predict for the parties what is likely to happen if they do not settle their dispute themselves. For example, lawyer-mediators who have significant trial experience can usually give the parties a fairly accurate idea of the costs and likely outcome if they were to proceed before a judge or arbitrator. Some parties specifically wish that kind of evaluation and guidance from their mediator, while others do not. The parties control the process so they can specify for their mediator whether they want an evaluative approach.
  • Transformative – the mediator puts a much greater emphasis on helping the parties appreciate and understand why they find themselves embroiled in the dispute and how they might change or transform the ways in which they relate to one another. This is a “quasi-counseling” approach which can be emotionally difficult and takes a great deal of commitment and willingness to learn, from both parties. The transformative approach is reserved for disputes where the parties expect to continue to have an ongoing connection of some sort, and need to work constructively with one another in the future.

How is mediation different than court?

While litigation in the courts is based on legal arguments and positions, mediation is focused more on the underlying interests (needs and concerns about the future) of both parties. Mediation is therefore a forward-looking process that starts with where the parties are at that time, and seeks to work out a way for each of the parties to best move forward with their lives.

Litigation, in contrast, is a backward-looking “blame game”, which seeks to determine who is responsible for the situation the parties find themselves in and what the “facts” are, to determine the resulting legal remedy. This generally sets people up to blame one another for what went wrong in their relationship. Since nobody likes to be the “bad guy”, people naturally take a defensive posture when they are blamed, and the discussion goes downhill from there.

Parties who wish to resolve their dispute through mediation will choose together who will be their mediator. In court, you do not get to choose your judge.

There are fewer formal documents that need to be sent to either party or the mediator, although a mediation contract does need to be signed and disclosure of important documents and records will still be required. The court process has fixed steps and rules about documents to be prepared and filed at each step.

A mediator can guide the parties' discussion and the mediation process in whichever way the mediator and parties decide together would be most beneficial to the successful resolution of the matter. Consequently, each mediation can be different and customized to the parties. The court process is much more rigid and “one size fits all”. That works for the judge and the lawyers, but adds cost for the parties.

What does the mediation process look like?

Generally, at the beginning of the mediation process, the mediator will take the initiative and review with the parties the nature of mediation, the type of approach the mediator is taking, and what will happen in their mediation session specifically. The parties will be asked to sign a Mediation Agreement, if they have not already done so.

The parties may then be asked to discuss their concerns, needs and what they hope to achieve, if this was not already covered in the intake process. From this point, with the mediator's assistance, the parties can narrow the issues and uncover underlying interests that they may not have been consciously aware of, that were impeding their ability to resolve the matter.

The mediator may then try to get the parties to agree on a list of interests that need to be addressed. Once that list or agenda has been set, the mediator will help the parties explore their interests as they relate to the dispute. By keeping the discussion flowing, the parties may be able to come to a better understanding of their own motivations and needs, as well as each other's.

After each issue has been explored to the parties' satisfaction, the mediator may then encourage a brainstorming session to generate possible solutions to the problems facing each party. Since mediation is an interactive process, both parties will be encouraged to contribute to a list of options for settlements. Creativity and flexibility is often fundamental to the mediation, so all suggestions or options can be discussed in a non-judgmental way, at least initially, before deciding how each option measures up against the interests which the parties have expressed.

Mediations usually start with all parties in the same room, to meet with the mediator jointly, but it is not uncommon for the mediator to later separate parties into different rooms, for “break-out” or “caucus” meetings, as a mediation proceeds. This can happen for a variety of reasons:

  • It is often done for “power-balancing” purposes, to ensure that a party who may feel intimidated or emotionally overwhelmed sitting in the same room with the other party, has an opportunity to meet privately with the mediator to discuss his/her concerns without the other party overhearing – in such cases the mediator often shuttles back and forth between rooms to hear from each party.
  • It is sometimes done, when the parties have lawyers who are attending and assisting them during the mediation, to get legal advice in private and be able to maintain confidentiality.
  • It is sometimes requested by the mediator, if the parties who are in the same room have reached an impasse or sticking point, and the mediator thinks it would be beneficial to speak with each party separately.

If the parties have lawyers representing and assisting them during the mediation, these lawyers will typically do the drafting, and the mediator will assist if a dispute arises about specific language in the agreement. If the parties are self-represented, the mediator will often draft the settlement document for them.

Either way, each party will have an opportunity to participate in drafting and editing of the settlement agreement. Once the drafting is completed, each party will be encouraged to obtain independent legal advice before signing (if their lawyers have not already participated in the mediation itself). Copies of the final, signed agreement will be given to each party.

What if no agreement is reached?

Unless parties specifically agree otherwise, mediation sessions are usually “closed” and “off the record”. This means that any concessions or admissions made by a party during the mediation cannot be introduced as evidence or used against that party at a later hearing. Furthermore, the mediator may not be called as a witness at any subsequent hearing to testify about what took place in the mediation. Some mediators actually shred their notes when the mediation is completed, just to ensure that neither party could subsequently attempt to subpoena those notes for a court proceeding.

Should a settlement not be reached, this does not prohibit the parties from resorting to the court process if they wish, or proceeding to arbitration instead, to resolve their dispute. Sometimes parties will just need a break from mediation for a period of time, to consider their alternatives further or to gather additional information, before returning to another mediation session later.

While mediation is not always successful, it does have a very high percentage of success in resolving disputes outside of the court process. Even when a final settlement is not achieved, parties typically find that the mediation process has substantially narrowed the issues in dispute and helped them to focus on what is really important that still prevents a final settlement. Compared to the expense of narrowing issues through a litigation process, the time spent on a mediation can be a wise investment to hasten a final settlement.