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What is Mediation and Why Do It?
In virtually all civil lawsuits, the idea of a “mediation” comes up at some point along the way. Regardless of the timing, legitimate questions arise. What is a mediation? What does a mediator do, or not do? Why should I go through a mediation? This article answers these questions.
What Is a Mediation?
First, mediation is a process by which two or more parties try to resolve their conflict with the help of a third party trained in conflict resolution and neutral to the dispute. Mediation is not binding unless all parties agree to a resolution reached during the mediation. Hence, while sometimes participating in a mediation is mandatory (as when a court requires it), reaching an agreement is always voluntary.
What Does a Mediator Do, or Not Do?
Second, a mediator has a limited, albeit important, role. To be clear, a mediator does not decide who is right or who should prevail. Rather, the mediator listens to both sides, clarifies their goals, and helps them reach a resolution both sides can accept. A mediator may help parties understand how close or far apart they are from a resolution without either party disclosing all their positions to the other side before they choose to do so. Mediators may also suggest potential resolutions so that neither party feels like they must “make the first move.”
Why Should I Go Through a Mediation?
Third, mediation offers the following benefits to a party in a lawsuit:
Confidentiality. Unlike litigation, an agreement reached in mediation can be kept confidential if the parties agree. Even the fact that you engaged in a mediation can be kept confidential if the parties choose. Moreover, offers or demands made in a mediation cannot be used in court against the party who made them if the matter does not settle.
Cost Savings. Achieving an agreed resolution in mediation will likely be less expensive than continuing litigation. Mediations taking place early in the disagreement typically have greater cost savings than those occurring later.
Collaborative Instead of Adversarial. In litigation and arbitration, only one party prevails. In mediation, the mediator and the parties work to find a mutually beneficial solution, or at least a tolerable one. The collaborative aspect of mediation may be particularly useful if you hope to maintain a relationship with the other party. For example, if your customer is not paying for a shipment, but otherwise is someone with whom you want to keep doing business, mediation can resolve the dispute and preserve the relationship at the same time. Litigation, on the other hand, generally ends the relationship.
Certainty and Control. Despite having strong evidence and solid case law, no one can predict with certainty the decision of a jury, judge or arbitrator. In mediation, you decide what resolution is acceptable and have the final say in how the dispute is resolved.
Focus on Your Priorities. During a mediation, the mediator asks both parties what their goals are. They listen to those priorities and help sort out what the parties must have, what they would like to have and what is immaterial. That process – unique to mediation – often suggests possible resolutions both sides could accept, but which cannot be achieved in litigation.
You Can Still Go to Court If No Agreement Is Reached. If none of the solutions presented at mediation are acceptable to you, you can still proceed to court. Mediation only ends the litigation if all parties agree. But even an unsuccessful mediation is beneficial.
Key Takeaways
In sum, mediation:
- helps focus on the truly important issues.
- reveals strengths and weaknesses of both your position and the other side’s.
- may uncover the evidence and strategy the other side intends to advance at trial.
There is almost never a reason not to mediate. To the contrary, it is almost always a wise choice to pursue it. While some questions need to be considered about when to mediate, not mediating at all seldom makes sense. The benefits of potentially resolving the dispute creatively, plus the insights gained from even an unsuccessful mediation, make it well worth the time expended.
Should you have any questions about or wish to pursue mediation, please contact Mr. Harper.
The author gratefully acknowledges Sarah J. Heinrichs’ contributions to this article. Ms. Heinrich is a summer associate with Eastman & Smith who is entering her third year of law school at the University of Michigan.
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Disclaimer: This alert has been prepared by Eastman & Smith Ltd. for informational purposes only and should not be considered legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney/client relationship.
