What is Mediation?
Mediation, an alternative to an adversarial process, approaches conflict within a framework of collaboration, understanding and balanced choices. The parties, whether represented by legal counsel or not, work directly with the mediator. The process clarifies interests, challenges positions and re-orients choices. This interaction is designed to assist the parties in managing their expectations and strategy congruity with their goals and purposes. The benefits of this approach minimizes loss of opportunity of unintended delay. experienced mediators make few assumptions; but one assumption inherent in our approach to the process is this: informed parties know what’s in their best interest.
Another characteristic of the mediation process is confidentiality. All “courts of record” in the United States recognize the significance of protecting communications with the mediator and recognize these communications as privileged. This protection allows for greater freedom of thought giving the parties a psychological safety to listen, to consider and perhaps to develop new understanding of fact and motivations of the other party. When this happens, the decision-making process of the parties is impacted, allowing for adjustments in strongly-held beliefs and positions; and shifts in possible options and resolutions.
Mediation is arranged privately between the parties, and is not subject to the schedules and rules of the court. Mediation sessions are flexible, adaptive and occur at times convenient to the parties and facilitating mediator. Even if court-referred, the parties are empowered to create an enforceable resolution to their satisfaction. Because mediation does not take place in a courtroom, the setting is less formal and less intimidating.
Mediation is confidential and not open to the public. If the mediation does not result in an agreement, the parties retain the right to pursue their objectives in a court of law. The mediator and the process — absent the exceptions because of public policy reasons —- are protected by law as either privileged or confidential.
The purpose of mediation is to reach a mutually satisfactory solution. Unlike litigation, in which one side prevails, a mediated settlement, within reason, can be whatever the parties agree upon, however unconventional or progressive. An agreement, if there is one, is voluntarily entered into, with knowledge and intention. The parties and their attorneys are more likely to employ strategies for creative resolution rather than strategies to inflict hardship or pain.
Do I Need an Attorney for Mediation?
While there is no requirement to retain an attorney to represent or advise you in mediation, it may be wise to have an attorney available as legal counsel to understand the legal implications and consequences of the terms and responsibilities being considered.
While the mediator may advise and provide personal perspective, the mediator has an ethical obligation to remain outside the role of legal advisor.
If We Reach an Agreement, is it Legally Binding?
When the outcome of a mediation results in a settlement, in writing, which outlines the rights and obligations of the parties, and is entered into with the intention to be bound by those terms, the agreement created is a contract enforceable in a court of law.