Mediation is an assisted negotiation process designed to promote respectful communication and the creative resolution of disputes. The process is supervised by a neutral mediator who guides the discussions of the parties and their representatives so that they achieve a better understanding of their own and the other party's needs, interests and values. The mediator does not provide legal advice or representation.
Mediation is voluntary. The parties control the timing, location, and scope of the mediation sessions and select their own mediator. The mediator has no power to impose a resolution on the parties or to force them to agree to any particular terms.
Courts may sometimes order the parties in a lawsuit to participate in mediation, but, while the parties can be required to talk, they cannot be compelled to resolve their dispute.
Mediation gives the parties what may be their last chance to bring about a result that is entirely within their own power and control - before the court takes charge and makes dispositive rulings that may produce losses for both sides without a "win" for either side.
Mediation is private. Only the parties and their attorneys attend, and there is no record of the proceedings.
Mediation is confidential. Laws in California and many other jurisdictions provide that nothing said during the mediation process, and no evidence created for the mediation process, may be used in court. During the mediation, the mediator may sometimes speak to the parties separately. If the mediator does so, anything said during the private session, or "caucus," will be kept confidential unless the party gives the mediator permission to disclose it to the other side.
Mediation is flexible and creative. Discussions and resolutions need not follow legal rules or legal models, nor are the parties required to "compromise" or to accept some "middle" position. The mediator will encourage the parties to fashion solutions that meet the needs and respect the values of both sides. Ideally, neither side "loses."
Mediation is a learning experience. Even if the mediation process does not result in a settlement, the parties who participate actively and in good faith in mediation discussions will learn something new about their case and about the other side's case.
Mediation is a low risk activity. Because it is voluntary, private, and confidential, parties can only gain by engaging in mediation.
Mediation produces solutions that are definite and immediate. There is no waiting for court decisions or appeals.
There are many different mediation styles. Some mediators use a "facilitative" approach [see My Philosophy] to help the parties identify their interests and find solutions, without expressing opinions as to what a case is "worth" or what the settlement number should be. Others use an "evaluative" approach, common in court settlement conferences, where the mediator expresses opinions (usually strong ones) on the strengths and weaknesses of the parties' claims and defenses and seeks to persuade them to agree to a settlement that the mediator thinks is fair. Some mediators use only joint sessions, and never caucus separately with the parties; others have very limited joint sessions and rely almost exclusively on private caucuses. When you select a mediator, be sure to find out which style he or she uses.
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