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In mediation, a neutral assists parties in reaching a negotiated resolution of a dispute. Mediation allows each side to communicate their views of the conflict to the other side, and to gain a better understanding of how the other side views the problem. That allows the parties themselves to design a solution to the dispute that may be better for both sides than the costs and risks of other methods of conflict resolution, particularly litigation.
Parties in conflict can choose mediation any time they deem it appropriate. It is sometimes advisable to call in a mediator before filing a lawsuit, and it is also common to try mediation after the parties have exchanged pleadings and some discovery in litigation.
Mediation can consist of a one day or half-day meeting of the parties with the mediator, or a series of meetings at which the parties exchange information and try to resolve issues one by one. Depending on the style of the mediator, mediation sessions can be conducted primarily in joint session where all parties are present and communicate directly, or in caucus style, where the parties remain in separate rooms, or through a combination of approaches. Mediators can be evaluative, by providing an opinion of the merits of each side’s position, or facilitative, in which they mainly guide the parties negotiations, or transformative, in which they try to change the parties’ views of the conflict, or a combination of approaches.
Mediators may be former judges, or attorneys, or come from another professional background. In addition, all of the mediators who appear on the SCMA directory have received specific training in mediation and negotiation techniques. In choosing a mediator, parties should consider what kind of mediator background is most suitable for their dispute, and should also ask prospective mediators about their preferred mediation style.
Mediation is a confidential process. That means–at least–that admissions or promises made in the course of mediation cannot be used in court against the party making them, in the event the case does not settle. It can also mean that parties may divulge information to the mediator with the proviso that certain information will not be disclosed to the other side.
In mediation, the parties’ interests, more than their positions, are paramount. The result that a court could or should reach may be important in mediation, but the parties may also try to satisfy interests that would not be considered by a court. In mediation, the parties control the outcome, and aim to reach an outcome that satisfies both sides. Mediation can therefore, reduce or at least manage conflict, while litigation often prolongs and can even exacerbate conflict.
For more information about the mediation process or choosing a mediator, call Anne Sawyer, SCMA’s executive director, at (562) 665-1241. Or call any of the mediators listed in the SCMA directory.