The objective of mediation is to achieve a resolution of the parties’ dispute that satisfies all parties and prevents the need for further proceedings. Individual mediators have different styles or approaches. Every dispute and set of parties is unique. There are, though, several common roles and responsibilities in mediations, whether voluntary or mandatory.
The mediator’s role is not to force the parties to reach a dispute, or to convince them to accept another party’s proposal. Neither is it the mediator’s role to provide legal advice. The mediator’s role is to help participants: to listen to each other; to understand the issues from each other’s perspective; and to develop solutions that satisfy both parties. There are a number of steps that a mediator will take toward these goals.
The mediator usually meets with each party individually early in the process. That will provide the mediator with an opportunity to hear each party’s perspective and positions on the issues in dispute. The mediator will likely clarify that he or she is not representing any person and that he or she will not take any side in the dispute. The mediator will explain the mediation process and answer any questions that any party may have.
The mediator’s first conversation with a party will be affected by the amount of information that he or she has in hand. In some cases, the mediator has received a mediation brief from the parties that introduces the dispute and may even attach some relevant documents. In a case like that, the mediator may ask questions to clarify the information or fill in any blanks. If the mediator has not received any information in advance, the mediator may ask you or your lawyer to explain the background to the dispute.
After the mediator has spoken to all sides in the dispute, he or she will likely go back and forth between each side: to try to explain each party’s position; and to seek common ground and possible solutions. The mediator will ask questions and may make suggestions, but cannot impose any settlement on any party. The mediator may also ask you to clarify what he or she is permitted to tell the other side. If you tell the mediator something that is only for his or her information, be sure to clarify that it is not to be communicated to the other parties.
Not all participants in mediation are represented by a lawyer. Even if you participate without a lawyer, you may wish to consult with a lawyer prior to mediation. A lawyer may help you: be aware of all the relevant facts and information; identify the other parties’ interests; and identify possible settlement options. If you are represented by a lawyer, he or she may talk a great deal at the mediation session, or may let you speak for yourself. How you strike that balance is something that you should discuss with your lawyer in advance. Even if your lawyer speaks a great deal, remember that the dispute is yours. Your lawyer will provide legal advice and recommendations, but the decision to settle a case or reject a settlement proposal is yours.
As a party to the dispute being mediated, your role is to pursue a resolution of the dispute in good faith. Good faith participation means preparing in advance and honestly considering and making settlement proposals. Parties going into a mediation should consider what their options are if no agreement is reached. By doing so, the party will have a better sense of whether to push hard for a resolution or to be more cautions in preference for other alternatives. Your lawyer will be able to help you understand the risks of not reaching a settlement, including the potential cost in time and money of litigation in the courts.
If you have any doubt about your role or the role of any other participant in a mediation session, you should contact a lawyer with experience in mediating disputes.
Guidance: Preparing Yourself for Mediation