What Is Mediation Analysis?
- Mediation is one form of dispute resolution that is an alternative to filing a lawsuit. Other forms of alternative dispute resolution (ADR) include judicial arbitration, non-binding arbitration or binding arbitration. Mediation differs from all other ADR by providing the parties the ability to control the result. Mediators are neutral facilitators with no authority to impose a result or force a settlement. In this regard, a mediation analysis is a prospective look at how the parties can cooperate to resolve their dispute for their mutual benefit, rather than a retrospective look at past actions (as in litigation) to impose a resolution outside of the parties' control.
- Mediation offers several benefits besides the ability to control the result. Mediation can be scheduled soon after the dispute, thereby avoiding delays often associated with litigation. An earlier resolution of the dispute means costs savings. Creative, non-judicial solutions can be used to resolve the dispute. Courts are constrained to render judgments that follow the law. A resolution by the parties that is fashioned to their particular needs may enhance the possibility of a continued business relationship.
- Unlike a judge, it is not the mediator's role to assess blame or offer an opinion on the merits of the case. The primary role of the mediator is to act as a catalyst for communication that will eliminate obstacles preventing the parties from resolving their differences. The mediator works to define the issues and guide the parties away from confrontation. During the course of the mediation, the parties should expect the mediator to request concessions from each of them as a part of reaching a settlement.
- Mediation is less formal than a trial. Mediators decide the best procedure for a given dispute, but for most cases mediators tend to use a similar approach. The mediator begins by holding a joint session with an introduction to the parties, followed by setting an agenda to ascertain the parties' position on the important issues in dispute. From here, the mediator will caucus privately with each party and his attorney, thus allowing the parties to more fully explain their positions in confidence. After several rounds of private caucusing, the mediator should be in a position to know whether the parties' dispute is capable of being settled and on what terms.
- Because they are voluntary, resolutions made through mediation have a high rate of success. By contrast, court judgments impose a result on one party that may induce surprise and shock. The losing party may continue the legal battle by filing an appeal to overturn the judgment. This causes further expense, continues the element of uncertainty and delays the eventual result.