Mediation is a type of alternative dispute resolution with the goal of finding a solution and reaching an agreement that is acceptable to all parties involved. In some counties, mediation is mandatory and if a case becomes contested, the parties are ordered to attend mediation prior to scheduling a trial. In some instances, however, even if not court ordered, it may be beneficial for the parties to attend mediation depending on the facts of the case.
During mediation, the parties will meet with a neutral third party mediator who may sometimes be an attorney or even a judge, but in any case, the mediator is a trained professional whose job is to look at the facts of each case objectively and not to take sides or play favorites. In mediation, unlike arbitration, a mediator is there to facilitate a resolution of the case but does not have authority to make any rulings or to bind the parties to a particular outcome, as would an arbitrator. The mediator can also not give legal advice to the parties, but can use common sense reasoning to assist in decision making.
One advantage of mediation is that the parties can come to a resolution on their own terms and essentially control the outcome of the dispute. At trial, the judge or jury decides the case where the outcome can be less favorable than the parties may have agreed to prior to trial. Consequently, depending on the facts of the case, the parties may find it more beneficial to resolve the issues on their own terms than face the uncertainty of trial.
An important thing to remember is that mediation is confidential and anything said in mediation, either to the mediator or to the opposing party, is held strictly confidential and cannot be used against that party. The mediator is not allowed to be called as a witness at trial or any other hearing, nor can a party testify to anything that was said during the mediation. This is helpful as it permits each party to speak freely and allows full disclosure of all of the issues which may have otherwise gone unknown or unsaid. Mediation also allows the parties to express his or her feelings about the case in an informal setting. The parties are not, however, required to enter into an agreement and if one cannot be reached, the mediation may be terminated and the case will continue through the court process.
Although mediation may not be a viable option in every case, mediation can be an invaluable tool in assisting parties to work together to reach common goals, which can ultimately help keep relationships intact.