What Is Mediation?

by James Rainwater

Mediation is a process whereby a neutral party (the Mediator) facilitates two or more parties in a conflict to reach an agreed settlement (Mediated Settlement Agreement). Though the Mediator is often an attorney, the Mediator does not act as an attorney or a judge. The Mediator does not give legal advice or make rulings upon any of the issues at hand. It is the role of the Mediator to help the parties find some common ground and hopefully agree to some sort of resolution. Not all mediation conferences will reach a settlement; yet, sometimes a mediation at impasse may settle within a few weeks after the conference due to the parties' new perspectives of the conflict. Once the Mediated Settlement Agreement is signed by all parties, it becomes a legally enforceable agreement and is not subject to revocation

Mediation should not be confused with arbitration. Arbitration involves a similar scenario; however, the Arbitrator acts as a "private" judge and makes a decision that is binding upon the parties (Binding Arbitration). The Arbitrator listens to the parties' presentations, asks questions, occasionally questions witnesses if present, and then makes a ruling within a set amount of time.

Mediation is usually the only time that the parties will have to meet and have a direct voice in deciding what happens. Once the parties are in court, the decision is removed from the parties and given to a judge or a jury, where one side will win and the other side will lose. It is often said that a good mediation is where both parties leave the conference somewhat unhappy but with an agreement. Mediation is the one time in the whole lengthy process of a lawsuit where the parties have complete control over the situation and its outcome. The mediation conference is confidential, and information exchanged in separate meetings with the parties is also confidential. Anything discussed in mediation is not admissible in court, should the parties not settle and proceed to trial.

The Mediator assists the parties in understanding each side's position, may evaluate the parties' positions, and may possibly offer alternative solutions that the parties had not previously considered or imagined. Mediation can open multiple doors of resolution possibility that no judge or jury can do. A trial is always a gamble, and no one can predict the actions of a judge or jury, as to who wins and how much or how little will be awarded. That is why we say, 'Your worst day in mediation can beat your best day in court.'

"Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser... in fees, expenses and waste of time."
- Abraham Lincoln

James Rainwater

James Rainwater