Mediation refers to one of several methods used to resolve legal disputes other than through formal court trial. Mediation and arbitration constitute methods of “alternative dispute resolution” (ADR). Arbitration is used as a substitute for trial, but mediation merely assists the parties in reaching their own resolution of a disputed matter. Instead of a judge or jury rendering a judgment or verdict, or an arbitrator rendering a binding decision, a mediator merely facilitates open discussion and tries to assist the parties in resolving their differences on their own.
Those who go through formal mediation tend to achieve settlement through their own spirit of mutual compromise.
For that reason, mediation may be particularly helpful or appropriate in situations where parties have an ongoing relationship (neighbors, business associates, divorcing parents of minor children, etc.) and do not want that relationship destroyed by the adversarial process of trial. In addition to being less adversarial than trial or arbitration, mediation tends to be less expensive, faster, and non-binding.
Mediation also may be used as a pre-trial initiative to provide a way for litigating parties to gauge the relative strengths and weaknesses of their claims and defenses before they get to the point of trial. This does not mean that mediation is used as a practice trial; rather, it represents a joint effort in good faith to resolve the matter before it gets to trial. In this form of mediation, after parties consider all sides to the dispute, a recommendation for settlement is given to the parties for their consideration. If the parties are unwilling to compromise their respective positions, and no settlement of the dispute results, at least the mediation experience will have given them a better understanding of how the dispute may or may not play out in court.
Mediation of a dispute may occur as a result of voluntary private agreement, or court order. The term “mandatory mediation” may be misleading. It merely means that the parties are “forced to the table” to try to resolve their dispute prior to trial. It does not mean that they are required to settle their dispute; it merely requires that they attempt to do so in good faith. The decision to accept the outcome of the mediation and settle the matter remains voluntary. If the attempt at mediation fails to resolve the dispute, the parties may continue to litigate the matter.
A voluntary agreement to mediate a dispute may pre-exist the dispute, as in a private contract provision in which the parties agree to mediate any dispute that may arise in the future. Alternatively, a decision to mediate may come about after a dispute has already occurred and the parties are merely considering a way to resolve the matter without going to court.
Unlike arbitration, mediation is not similar to a trial. In voluntary mediation, there is no “decision”, judgment, or verdict rendered. Rather, the neutral mediator acts as a go-between and does not take sides or advocate the cause or defense of any party. The setting is more often informal than not, and the parties may or may not be represented by attorneys (usually, court-ordered mediations are handled by the attorneys representing the parties).
The mediation hearing itself differs substantially from a trial, in that there is generally no formal presentation of evidence, and generally no witness testimony. Rather, each party summarizes its position in written papers filed with the mediator(s) prior to the mediation. In the written summary, each party describes the evidence it intends to produce at trial, if mediation is unsuccessful. The mediation papers may include photographs, affidavits from witnesses who will appear at trial, formal opinions or reports from experts, etc. There is a summarized statement of the issues and the respective positions of the parties, as well as factual/legal arguments identifying the strengths and weaknesses of the opposing position(s). The mediator(s) will review the premediation documents in order to become familiar with the issues and arguments, and thus be able to facilitate settlement. It is important that mediations are kept confidential, either by express agreement or by law, so as not to affect trial of the matter if mediation is unsuccessful.
Most often, there is a single, neutral mediator who facilitates and encourages open discussion and negotiation between the parties. However, in some cases a panel of mediators may be selected. When different perspectives can be helpful, the mediators may also have an entirely different background (“co-mediation”), e.g. they can be from different countries in international disputes, or they can have a legal and non-legal background, or speak different languages, etc.
What is mediation?
Simply put, mediation is negotiation between disputing parties, assisted by a neutral. While the mediator is not empowered to impose a settlement, the mediator’s presence alters the dynamics of the negotiation and often helps shape the final settlement. Mediation has been defined as “the intervention into a dispute or negotiation by an acceptable, impartial and neutral third party who has no decision making power, to assist disputing parties in voluntarily reaching their own mutually acceptable settlement of issues in dispute.” (Canadian Bar Association, Task Force Report on ADR in Canada, 1989, 15).
Successful mediations result in a signed agreement or contract which prescribes the future behavior of the parties; this is often called a memorandum of understanding. Such an agreement has the force of a contract and, when signed, becomes binding.
Characteristics of a mediation
Mediation is:
- Voluntary: No party is forced to use a mediator, nor are they forced to agree to a particular settlement;
- Non-Coercive: The mediator does not decide for the parties, but helps them make their own decision;
- Assisted Negotiation: The mediator’s role is to be an impartial third party who helps the parties reach a fair and mutually acceptable settlement. The mediator may provide relationship-building and procedural assistance. Moreover, the mediator may also provide substantive options to the parties;
- Informal: The proceedings of a mediation are more relaxed and informal than those of a court or an arbitration. There are no prescribed rules of procedure and few rules other than those agreed to by the parties themselves;
- Confidential: Generally, mediation is described as a confidential process. It is up to the parties to jointly establish any limits. If it is decided that the mediation should be confidential, the parties and the mediator should sign a clause to that effect.
Objective of a Mediation
Conducted properly, mediation can allow all parties involved to move away from legal concepts such as fault and instead, allow for a sharing of people’s perceptions and experiences and a determination of each party’s actual needs and interests. Such an outcome can often do more to truly resolve the problems or perceived problems which led to the dispute than any formal hearing.
During a mediation, both the parties and the mediator have certain responsibilities. The parties must attend, as requested, all mediation sessions and participate in the process in good faith. The mediator should remain dispassionate and avoid becoming partial to one party or view. Further, if expressly agreed, all statements and disclosures made and information and documents provided to the mediator are confidential.
Preparing for a Mediation
The choice to go to mediation rests with the parties, all of whom must agree to attend.
The parties must mutually select a mediator, either through referrals or directly.
The mediation agreement should be drafted, laying out a number of critical items, including, but not limited to:
- the logistics of the mediation;
- the cost-sharing arrangement (normally 50/50);
- the mandate of the mediator;
- whether the mediation will be confidential or of public record;
- how disclosure would operate – in advance or as required by mediator;
- the use of subsequent processes if mediation is unsuccessful;
- the possibility of co-mediation;
- remuneration for the mediator.
Steps of a Mediation
Although the actual mediation process may vary depending on the degree to which positions have hardened, the personalities of the people involved and the complexity of the issues, at root, successful mediations generally involve a series of five mandatory tasks:
- Agreeing to mediate;
- Understanding the problem(s);
- Generating options;
- Reaching agreement;
- Implementing the agreement.
These tasks can be expanded into twelve basic steps (adapted from C. Moore's The Mediation Process, Jossey-Bass Publishers, 1986) – all of which should be realized for a successful mediation to be concluded:
Stage 1: Initial Contacts with the Disputing Parties
- Build credibility;
- Promote rapport;
- Educate the parties about the process;
- Determine whether a lawyer needs to be consulted;
- Increase commitment to the procedure;
Stage 2: Selecting a Strategy to Guide Mediation
- Assist the parties to evaluate various methods of conflict resolution;
- Assist the parties to select an approach;
Stage 3: Collecting and Analyzing Background Information
- Gather and verify accurate data about the personalities, contest and substance of a dispute;
Stage 4: Designing a Detailed Plan for Mediation
- Identify strategies that will enable the parties to move towards agreement;
Stage 5: Building Trust and Cooperation
- Prepare parties to deal with difficult substantive issues;
- Handle strong emotions;
- Identify perceptions and minimize effects of stereotypes;
- Build recognition of the legitimacy of the parties and issues;
- Clarify communications;
Stage 6: Beginning the Mediation Session
- Open communication and negotiation between the parties;
- Establish an open and positive tone;
- Establish ground rules and behavioral guidelines;
- Assist the parties in constructively venting emotions;
Stage 7: Defining Issues and Setting an Agenda
- Identify broad topic areas of concern to the parties;
- Obtain agreement on the issues to be discussed;
- Determine the sequence of handling the issues;
Stage 8: Uncovering Hidden Interests of the Disputing Parties
- Identify the substantive and procedural interests of the parties;
- Educate the parties about each other’s interests and needs;
Stage 9: Generating Options for Settlement
- Develop an awareness among the parties of the need for options;
- Assist in lowering parties’ commitment to positions or sole alternatives;
- Generate options through brainstorming and dialogue;
Stage 10: Assessing Options for Settlement
- Review the interests of the parties;
- Assess how interests can be met through various options;
- Assess the costs and benefits of each option;
Stage 11: Final Bargaining
- Bring the parties’ interests together;
- Generate will to compromise;
- Create an agreement or Memorandum of Understanding;
Stage 12: Achieving Formal Settlement
- Identify procedural steps to operationalize the agreement;
- Establish an evaluation and monitoring procedure;
- Formalize the settlement and create an enforcement mechanism.
What is the Role of a Mediator?
The role of the mediator varies depending on the personalities of the people involved, mandate given to the mediator by the parties, and the degree of emotions present at the mediation. This results in a spectrum ranging from a mediator who is completely neutral and value-free; to a mediator who takes a more active role in shaping the eventual outcome. The latter borders on mediator as advisor. Regardless of what techniques are used by the mediator to assist the parties in reaching a solution, the mediator is not empowered to render a decision.
In various situations, the mediator may attempt to:
- Encourage exchanges of information;
- Help the parties understand each other’s views;
- Let the parties know that their concerns are understood;
- Promote a productive level of emotional expression;
- Lay out the differences in perceptions and interests;
(These first points are results of active listening: reflecting – acknowledge and validate feelings and respond with empathetic statements; restating and reframing – paraphrase parties’ statements in order to identify the underlying concerns, needs or fears; and summarizing – review progress made and to bring together important facts and ideas that have been expressed.)
- Identify and narrow issues;
- Help parties realistically evaluate alternatives to settlement;
- Suggest that the parties take breaks when negotiations reach an impasse;
- Encourage flexibility and creativity;
- Shift the focus from past to future;
- Shift the focus from one of blame to a creative exchange between the parties;
- Hold caucuses with each disputant if there is deadlock or a problem;
- Propose solutions that meet the fundamental interests of all parties.
What is the Role of Counsel in a Mediation?
Counsel can play as active a role in a mediation as their client is willing to grant them. It must be determined by the disputing parties at the outset of the mediation whether counsel are present at the mediation session and whether they will be permitted to participate actively. In general, counsel can and should act as legal advisors to their clients, both during a mediation and at the completion of the process. Counsel can and should review a proposed agreement to determine if it serves the client’s interests. The presence of counsel during a mediation can help defuse instances of power imbalance. In certain cases, where emotions are exceptionally strong, counsel may represent their clients during a mediation session. Such representation places a considerable ethical and professional obligation on the counsel, who must communicate with their clients, understand their perspective, advocate on their behalf and ensure that the mediation process is addressing their needs.
Regardless, counsel should instruct their clients about how best to present their point of view. Appropriate body language can be important. For instance, a strong, yet non-antagonistic presence includes such aspects as: facing the person who is speaking; maintaining a comfortable level of eye contact; leaning forward to listen; keeping the voice level; maintaining an open and a relaxed posture – hands open, and keeping a distance from the other disputant.
Counsel should also gauge the reactions of their clients and either suggest breaks when appropriate or, during a break in the mediation, discuss their observations with the client. Counsel are in an excellent position to advise their clients as to their perception of how a mediation is progressing. Counsel can also play a role in defusing a client’s anger by ensuring face is saved and by normalizing the feelings if not the behavior. Further, counsel can remind their clients, if the mediation has reached an impasse, that an impasse does not mean that the mediation is hopeless, but merely that a compromise solution may need to be considered for that particular issue.
Dealing with a Power Imbalance and Communication Difficulties Between Parties
The mediator has responsibility to ensure that any possible power imbalance or difficulty communicating does not compromise the mediation. In addition to using counsel as representatives, two other effective methods for reducing an imbalance of power and communication problems are caucusing and co-mediation. Caucusing can be used when an impasse occurs during the mediation which threatens the possibility of a resolution. The mediator holds separate meetings with each disputing party to deal better with the cause of communication problems between the parties and to make suggestions regarding how it can be overcome.
Co-mediation is potentially a very powerful tool for addressing balance of power issues. This variant of mediation requires two or more mediators to be equally involved in the process. The rationale for this is to allow those parties which perceive themselves as weaker, to feel more comfortable with the mediation process. For example, co-mediators representing both genders can help defuse the perception of a power imbalance in harassment cases.
Concerns about mediation
Some people believe that mediation should be mandatory, while others believe that to do so would introduce a coercive element which is counter-productive and contrary to the consensual spirit of mediation.
As in many other processes, there is concern about accountability and authority to settle.
The fact that a failed mediation can be considered to have been a waste of time and efforts, should be taken into consideration. Those who wish to be able to stop the process at any time, and who consider this to be an advantage of mediation, do not consider the risk of failure as a justification to alter the mediation process. Those who consider the risk of failure of a mediation – leaving the parties without a solution for their dispute – as a serious disadvantage of the process, may want to opt for mediation-arbitration.
Advantages of mediation
Mediation is particularly useful when the disputing parties need or desire to maintain an ongoing relationship. The consensual process in mediation allows parties to avoid the adversarial elements of litigation which often make it impossible to continue a productive relationship after the settlement.
Mediation is a creative approach to dispute resolution which is not governed by strict rules of procedure. This allows the parties to design a process which suits their needs and encourages a consensual, rather than an adversarial approach.
The presence of a mediator allows disputants to explore settlement options openly thereby allowing the mediator to become privy to both the interests and positions of the parties.
Mediation is particularly advantageous in complex cases which involve numerous issues. Because of the flexibility of the process, the mediator can suggest compromise settlements on different issues, thus allowing for various settlement options which are not limited to legal remedies.
Since mediations are almost invariably private, the process is appropriate if confidentiality is considered necessary.
In general, a mediated settlement can be reached far quicker than a litigated one; accordingly, if the time to settle is short and prospects for settlement are reasonable, mediation can be the more appropriate process. Furthermore, the final outcome will likely meet both parties’ needs and interests better because they will be the ones who define the terms of the final agreement.
Similarly, due to the speed and informality of a mediation, the costs are generally considerably less than litigation. This is of importance both to corporate parties who wish to keep costs down and to parties who otherwise might not be able to afford the cost of the court process.
The presence of the third-party neutral allows for a controlled dialogue which is useful if previous negotiations have broken down or if the issue being mediated sparks strong emotions.
It is a general rule that the costs of mediation will be borne equally by all parties. Therefore, both parties have an equal stake in the outcome and a sense of ownership.
Disadvantages of mediation
Since parties to a mediation meet face to face, there is concern, particularly in cases involving harassment, that there might be a power imbalance between the parties. For example, if a female employee felt she had been harassed by a male superior, she might not be able to confront him as a person with an equal voice at the mediation sessions. In such a case, strategies to mitigate the power imbalance may be used.
Due to its private, non-adjudicative nature, mediation cannot produce legal precedents.
A strong-willed mediator can exercise too much control over the mediation and affect the eventual resolution.
The lack of a binding third-party decision, might encourage a defendant to agree to a mediation, but not fully cooperate, in an attempt to delay a resolution of the dispute.
(Most, if not all, disadvantages of mediation can be tackled in med-arb proceedings, as offered by ADR institutions such as CEDIRES.)
Appendix A: Checklist for mediation
Have the parties agreed to attempt mediation?
Are all directly interested parties (to the degree possible) at the table?
What additional people will be present at the mediation (i.e. lawyers, senior executives, etc.)?
Should the mediator be empowered to bring other people into the process if he/she feels that their presence would enhance the mediation?
Are the parties at the table represented by people with enough authority to agree to a final resolution?
Have you identified the issues to be mediated?
Has a process to select a mediator been selected?
Is there a mechanism for selection if the parties cannot agree on a mediator?
Does the mediator need to be bilingual?
Has a mediation agreement been entered into which includes:
- the mediator’s mandate?
- a provision for a written agreement if the dispute is resolved?
- the confidentiality of the process?
- remuneration for the mediator?
- acknowledgement of responsibility of the mediator?
- acknowledgement of responsibility of the parties?
- acknowledgement that all costs (i.e. location rental, mediator’s fee, witnesses fee, etc.) will be borne equally between the parties?
Has the date and time of the mediation been determined?
Has a neutral location been chosen?
Have limits been set on how long the mediated sessions will take?
Has a procedure to be followed been established and agreed upon by all parties?
If not, does the neutral have the authority to set the procedure?
Will any eventual agreement (Memorandum of Agreement/Intent) be subject to independent legal advice?
Is it established who will draft the agreement?
Is there an articulated alternative if the mediation is not successful?
Source: adapted by CEDIRES from: Department of Justice, Canada.
Appendix B: Sample mediation agreement
Terms of Mediation
Notice: If a dispute arises out of, or in connection with this Contract and the parties do not resolve some or all of that dispute through negotiation, then either party to the dispute may promptly submit to the other party(ies) a notice of intent to mediate. This notice shall be in writing and shall specify the issues in dispute.
Selection of Mediator: The mediator will be chosen, at the request of the parties, by CEDIRES (www.cedires.be).
Location: The mediation shall be held at .........................................
Authority to settle: The parties agree that the representatives selected to participate in the dispute resolution process will have the authority required to settle the dispute or will have a rapid means of obtaining the requisite authorization.
Exchange of information: The parties agree to an exchange of all information upon which they intend to rely in any oral or written presentation during the mediation. This exchange shall be complete no later than ten (10) days prior to the date set for the mediation.
Costs: The parties agree that they will each be responsible for the costs of their own legal counsel and personal travel. Fees and expenses of the mediator and all administrative costs of the mediation, such as the cost of the mediation room, if any, shall be borne equally by the parties.
Schedule: The parties shall jointly select a date for the mediation that is no later than ............................. days from the date of the notice of intent to mediate.
Confidentiality: All information exchanged during this mediation shall be regarded as “without prejudice” communications for the purpose of settlement negotiations and shall be treated as confidential by the parties and their representatives, unless otherwise required by law. However, evidence that is independently admissible shall not be rendered inadmissible by virtue of its use during the mediation.
Caucusing: The mediator is free to caucus with the parties individually, as he sees fit to improve the chances of a mediated settlement. Any confidential information revealed to the mediator by one party during such caucusing may only be disclosed to the other party(ies) with the former party’s express permission.
Prohibition against Future Assistance: It is agreed that the mediator will neither represent nor testify on behalf of any of the parties in any subsequent legal proceeding between the parties or where they are opposed in interest. It is further agreed that the personal notes and written opinions of the mediator made in relation to this mediation are confidential and may not be used in any subsequent proceeding between the parties or where they are opposed in interest.
Termination: Either party may terminate the mediation at any time.
Mediator’s Report: In the event that no agreement is reached, or is reached on some issues only, the mediator shall promptly provide a report to the parties stating only that no agreement was reached on some or all of the outstanding issues.
No New Steps: During the course of the mediation, the parties agree to take no new steps in any legal proceeding between them which concerns the same matter as is the subject of this mediation.
Med-arb: In the event that no agreement is reached, or in the event that the mediator finds that continuing the mediation process is not likely to result in a settlement, the proceedings shall continue as a binding arbitration governed by the Procedural Rules of CEDIRES. The parties acknowledge that the mediator shall be authorized to arbitrate the matter and that his role as mediator did, in the parties’ opinion, not affect his neutrality, impartiality and independence.