What is Mediation?
How do I know what to expect in mediation.
While mediation is becoming more common, most people who have not actually participated in a mediation still have no idea what it is. Mediation is often confused with arbitration. Clients expect that they will meet with someone who will, at best, help them convince the other party to give them what they want or, at a minimum, make a decision for them about the outcome, i.e. tell them what they should do. So clients usually believe that the best way to be successful in the process is to convince the mediator that their side of the story and what they want is right. But going into mediation with these expectations will make the experience frustrating.
There is no single approach to mediation. What one mediator may do in the room can end up looking VERY different from another mediator’s approach. In fact, what one mediator does with different clients can vary depending on the type of case and the facts of the case.
While there is some consistency amongst mediation education programs, not all mediators have the same background, education and training. Some mediators have received their training through law school mediation courses. Some are lawyers or judges who have been in practice for many years and went to law school before mediation was ever part of the curriculum. They may or may not have taken post degree private courses in mediation, ranging from one to five days, or may or may not have completed a mediation degree program through a university. Then there are non-lawyer mediators who may have come from a counseling background, or may have received some kind of interdisciplinary degree in conflict resolution. At this time, there is no licensing requirement in most states for holding oneself out as a mediator.
Finally, there are vast differences in mediation approaches that are taught in mediation training programs. You may have heard terms bandied about such as “facilitative” versus “evaluative” versus “transformative” mediation. These terms are often meaningless to clients, and sometimes even to mediators who are supposed to know what they mean. Approaches used often depend on what kind of case is being mediated. Personal injury and employment cases almost always will include attorneys in the room. Depending on the mediator, the attorney may do all or most of the talking for the client, or the attorney may just sit in as an advisor for the client who speaks for him/herself. In these kinds of cases mediators may be chosen specifically to engage in a more evaluative approach. In divorce or other family law cases (including probate) parties usually attend mediation sessions without their attorneys, and mediators are more likely to take a facilitative and/or transformative approach.
I like to say that mediation is a continuum of dispute resolution processes. It is a tool box that a knowledgeable and skillful mediator can pick and choose from depending on the kind of case that is involved, the individual facts of the case, and what the parties want and need. I have found though the years, that this view is by far the most common amongst experienced mediators. Therefore, the best place to begin is to make sure that YOU understand what kind of mediation is taking place, what approach the particular mediator you are utilizing will take, and what will work best for your client’s situation.
What to Expect? Common Features of Mediation
So, given all this, how do you know what to expect in mediation?
There are two features that should be present in all mediations. First, mediation is completely voluntary and a client should be advised that it is his or her decision whether or not to participate in mediation, and whether or not to end the mediation and/or reach an agreement in that process. Mediation is best defined as a process in which an impartial facilitator assists two or more parties to reach a mutually agreeable resolution of the controversy. A good mediator encourages and helps each party to make their own decisions regarding the process and the terms under which to resolve the controversy.
Secondly, the beauty of mediation is that the parties get to decide what is on the table for discussion and what options for resolution can be considered. They are not bound by what they can or cannot legally get in court. In fact, mediation allows parties to talk about what they really want or need in order to walk away feeling like their position was heard and acknowledged. Sometimes that means that a sincere apology or agreement to take steps to learn how to change future behavior might be a more satisfying term to a settlement agreement.