The Mediation Toolbox: What Is Mediation?

What is mediation?

You will likely be asked to consider mediation when you are involved in a dispute which has the potential to be litigated in court. Mediation is a process in which a neutral third party (the mediator) helps two or more participants resolve a dispute. The mediator works with the parties to help them reach an agreement, but the mediator has no decision-making authority and cannot tell you what to do. Keep in mind that a judge’s responsibility is to interpret and rule on matters of law. The mediators’ responsibility is to assist the parties in settling their dispute and be fair and equitable to all parties.

Here are some things you should know about mediation:

Mediation is Confidential. "What happens in mediation, stays in mediation." Mediation is a confidential process. This means that, generally speaking, parties cannot talk about anything that went on in the mediation. The reason mediation is confidential is so that the parties can speak freely and be creative without being concerned that it will be held against them later. However, you are allowed to discuss the mediation with your attorney, who may (or may not) be present during the mediation. There may also be exceptions to the confidentiality of mediations when issues in the mediation relate to the safety of the participants or children of the parties.

Mediators are Neutral. A bedrock principle of mediation is that it is facilitated by a neutral person, with no interest in the outcome or bias for (or against) one of the participants. You cannot have an effective mediation if the mediator is biased in favor of one party or the other. Your mediator must inform the participants if there is any reason why his or her neutrality may be compromised. Further, the mediator should be impartial as to result, which means that the agreement is up to the parties to decide, not the mediator.

Mediation is Voluntary. Mediation is a voluntary process. Anyone can leave mediation at any time for any reason. If a court case has been filed, people may be required to participate in “mandatory” mediation under certain circumstances. Generally speaking, though, mediation participants are there voluntarily.

Mediation is Private. Mediation is a private process which typically occurs at a mediator’s office rather than at a courthouse. If there is an existing court case, mediation settlements are typically written up and filed with the court, but not always.

Participants are Fully Informed. In mediation, all participants need to have all relevant information. If certain information relevant (and/or necessary to a settlement) is unknown, the mediator will work with the participants to figure out how to obtain the information.

Michael Kerry Burke has extensive experience in mediating disputes, and is a certified mediator. If you are considering mediation, call Burke & Associates to schedule an interview.