Mediation is a process used to resolve disputes. In mediation the parties are assisted by a neutral third party called a mediator. The mediator is not empowered to impose a settlement on the parties, rather the mediator facilitates discussions and negotiation with a goal toward reaching settlement.

HOW IS MEDIATION DIFFERENT FROM OTHER PROCESSES?

Disputes can be resolved in many ways. Initially the parties often try to negotiate a settlement. This can be done face to face or through representatives, such as real estate agent or attorney. On the other end of the spectrum, parties can resolve their differences through self help. In between lie various options such as mediation, arbitration and litigation.

Litigation is an adversarial process in which parties look to a third person (judge or jury) to impose on them a binding decision. The litigation process is an analogous to a contest in which a third person selects a winner and a loser. Arbitration resembles litigation in that parties present evidence to a third person who then decides their dispute. Arbitration's, however, are not held in the formal surroundings or under the formal rules of a court. In mediation, the parties approach a mediator to help fashion a resolution. /the mediators role is to enable the parties to work with one another to achieve a common goal - a mutually acceptable agreement.

HOW DOES A MEDIATION WORK?

One of the benefits of mediation is that it does not have to follow any particular formal or structural format. Typically though, a mediation will begin with the mediator introducing him/herself to the parties, confirming that any documents, such as a confidentiality agreement, have been signed, and explaining the initial manner in which the mediation will be conducted. The parties are then each given a chance to express to the other how they view the dispute. Some mediators will then separate the parties and meet with each individually. Other mediators do not separate the parties unless a particular underlying or unexpressed feeling or issue needs to be dealt with in confidence.

The mediator looks for areas of agreement, identifies issues, proposes ideas, and questions assumptions and positions but does not tell the parties how to resolve their dispute. Flexibility allows the mediator to tailor the process to suit the needs of the parties. If agreement is reached, the mediator often assists the parties in reducing the agreement to writing.

WHO AND HOW MUCH?

An neutral person the parties trust can mediate a dispute. This person can be a member of a panel of a mediation service, a rabbi or a priest, or any one else who does not have an interest in the outcome. California law does not require licensing or certification for mediators. However, many professional mediators have attended training programs, have had relevant dispute resolution experience, and belong to professional organizations.

The cost of mediation can vary depending on the mediator selected and the location and time allotted for the mediation. Mediation can be as little as a few hundred dollars divided equally between parties (or perhaps nothing at all for those who cannot afford it) to an initial filing fee of several hundred dollars plus an hourly fee for the mediator.

Mediators can be located by looking in the telephone directory under Mediation or Arbitration, contacting agencies such as the California Department of Consumer Affairs or organizations such as a local bar association, or asking your lawyer.

FINAL THOUGHTS

Mediation can be initiated to resolve any type of dispute, involving any amount of money, and at any time. If the parties have agreed in advanced to attempt mediation before filing a lawsuit or proceeding with an arbitration, all they are promising to do is try mediation first. If the mediation is not concluded with a comprehensive agreement, then the parties are free to pursue other avenues for resolution.

Mediation is a process in which parties to a dispute come together and, with the help of a mediator, try to resolve a dispute. Often, once negotiations have failed, the parties lose control of the process (to lawyers, judges, arbitrators, or inflexible rules and procedures, for example). Mediation allows the parties to keep control and craft their own solutions as they see fit.

If the mediation does not resolve all issues, it remains valuable in that it may narrow areas of dispute, allow the parties to express their feelings, and enable future proceedings to be more efficient and focused. If the mediation does resolve all issues, the agreement can be reduced to writing. Thus, the parties can avoid an often time consuming and emotionally draining litigation or arbitration and can take pride in that they have resolved a dispute by their own actions.