Mediation is best explained by example. In the following article, we imagine a dispute between two people, or a person and a business, but the concepts apply just as well to multi-party issues.
Imagine that you are at odds with someone. It may be your estranged spouse wanting more time with the children; a dissatisfied customer who is refusing to pay you; a neighbor whose tree overhangs your garden and drops leaves on your lawn; a family member who does not agree about how best to look after Grandma; or some kids in your complex who hang around and smoke all day in violation of the rules. In any event, there is a difference of opinion between you and another person about some matter. How are you best going to resolve this situation?
Possibly, neither of you are “wrong” as such, but you each have a different perspective on how to move forward. If your situation is like most, it would be best if the two of you could just “talk it out” and come to some understanding, arrangement, or agreement about how to proceed. Unfortunately, in life things don’t always work like that. You may have already tried to talk to the other person and failed; one or both of you maybe too angry to discuss things rationally; one or both of you may be nervous or scared about talking to the other person; you may be very emotional about the whole situation; you may prefer just to “put up with it” rather than get into an argument or confrontational situation; or you may just not like each other and not want to have to deal with each other. But to make progress, you need to have a some kind of interaction.
This is where a mediator can help. The mediator is a completely impartial (“neutral”) person who probably does not know either of you, but who will act as a “go-between” to listen to both your versions of the situation and your hoped-for outcomes, and see if there is any middle ground - opportunities for some kind of an arrangement, acceptable to both people, which will fully or in part help to resolve the situation. This is how a mediator functions, as an intermediary or go-between.
You may have seen mediators portrayed on television or in the movies. Two people and their lawyers are shown on different sides of a table shouting at each other while an ignored mediator at the end of the table, hands in the air, interjects vainly with “People, People”. This makes for good and amusing TV but it is NOT at all how real mediation works. A good mediator, for a start, would never put people facing each other directly across a table. A mediator would never allow shouting or interruption. What’s more, if two people are that much at odds, the mediator would be talking to them in separate rooms. In fact, often there is no need for disputing people to be in the same room at all. The mediator’s role is to “shuttle”, or go between them.
Now, good mediators, with proper training and experience, will understand that the people in a dispute are both tense and nervous, usually focused only on their side of the story, and wanting to tell the mediator as soon as possible about all the events that led up to the current day, how poorly the other person acted, and what the best solution would be for them. A good mediator will listen to each person to allow them to have their say, and will then focus on the facts that are actually relevant, supported if possible with evidence (pictures, emails, invoices) so that the important information is clearly identified.
There are several characteristics of good mediation that make it effective. The first is that the mediator at no time makes any decisions, or rulings. The mediator, having listed to one side and then the other, may sometimes offer individual suggestions or ideas as to how a solution might be developed, but in the end, the two people themselves have to agree on the final outcome. No one else tells them what to do. (This by the way, is what makes mediation so very different from a courtroom, where a judge decides the case, or arbitration, where the arbitrator makes the decision).
Another characteristic of mediation is that everything said to the mediator is completely confidential. If the mediator is talking to one person individually, whatever is said is confidential even from the other person. Sometimes, there is information that one person does not want the other person, or anyone else, to know. However, it might help to share that information with the mediator confidentially, so that the mediator understands the person’s perspective on the situation. Mediation is a way to keep private information private, and is one reason why mediation is in fact a more preferable approach to some cases.
The mediator can work with both people in the same room and act as a moderator to keep the dialog civil and focused. At other times, the mediator can work with the parties separately, ”shuttling” between them, sharing only information that one person has agreed can be shared with the other for the purpose of moving the discussion along. In many cases the mediator will speak to the two people both separately and together during the course of the mediation. In any event, and however the mediation sessions are conducted, the goal is for the parties, with the help of the mediator, to come up with a mutually agreeable solution to the situation being discussed.
Most often, the final agreement is written down and signed by both people. This especially happens in cases where there is money involved, or there are some actions to be taken. A written agreement cements the understanding and reinforces with both people that this is what they did in fact agree to. It should be written in plain, clear language that is easy and unambiguous to understand. Again, the mediator is usually proficient in the language for such agreements.
You may also notice that up until now, little has been mentioned about the legal system. This is because, to the most extent, mediation is a process for resolving disputes without going into the legal system. For many people, their first and only response to many situations is “I’m calling my lawyer”, meaning, “I’m planning to take this issue into a court room, where I think I will win’”. However, mediation is a way to work things out before things ever go to court.
Mediation is not a “legal proceeding” at all – it’s basically an assisted conversation and negotiation between two people to work out their differences on an issue. The mediator is not allowed to provide legal advice during a mediation, and does not do so, and this is usually made clear in writing before the mediation starts, when the people involved sign an “agreement to mediate” form. However, as with anything in life, mediation has to be done within the bounds of the law, and the people involved are encouraged to consult their own lawyers before, during, and after the mediation if they have any questions or concerns about their legal rights and responsibilities, or the legality of the agreement itself. Many people bring lawyers to the mediation sessions with them, especially for larger or more contentious cases.
Many people prefer mediation for the resolution of their issues – at least by the time the mediation has concluded, even if they did not realize this at the beginning. Mediation is an organized process; it allows the people involved to fully have their say and then work with a range of solutions until one is found that meets everyone’s needs, and once an agreement has been reached the people know exactly what they have agreed to. Mediation is fast, effective, much more flexible, much less expensive, and much less emotionally painful than a lawsuit with a judge’s ruling where the outcome can never be fully known beforehand. Mediation is often described as a “Win/Win” situation for the participants whereas a lawsuit, by its very nature, is “Win/Lose”, as each party out to “Win” its case at the expense of the other.
Having said this, if you browse for mediation on the Internet and read a few pages, you will find the world of mediation much intertwined with various court and legal pages. This has come about for various reasons. The first is that in the US and in other countries, courts are finding that many of the cases that come before them would be better off “settling” (e.g. being worked out privately) beforehand, and they are realizing that mediation, which involves bringing in an independent mediator, is a good way to achieve that. Many courts now provide mediators free of charge to opposing parties in lawsuits, either before the trial starts or sometimes even on the day, and the court encourages the parties to attempt to find a solution through mediation before they come before the judge.
In some areas, courts actually require parties to try and resolve disputes using mediation before the judge will hear the case. In California, certain disputes involving Homeowner Associations fall into this category, as do certain disputes in the construction industry.
Another reason that mediation is so intertwined with the legal profession is that more and more lawyers are “seeing the light” about mediation and are actually offering themselves up as professional mediators. For many lawyers this is something of a change of pace, as the whole of a lawyer’s legal being has often been to advocate fiercely for the best interests of their own client at the expense of the opposing party. The assumption that a lawyer will automatically be a proficient mediator, able to assist in the development of collaborative solutions, simply because of his/her legal background is probably not valid – the methods of mediation require specific training and experience. However, many lawyers who do take the time to go through the mediator learning process can bring a wealth of experience with them to the practice of mediation, especially in the “specialty areas”.
Oftentimes, two disputing peoples’ lawyers will attempt to settle a case between themselves – not always successfully, as again, like their clients, each is advocating for their own position rather than a cooperative result. However, these days even lawyers are using independent mediators to help resolve their cases, and often with success.
One area where mediation is particularly helpful but also fraught with emotion and entanglements is family law. It’s probably aways a good idea to have a lawyer to watch over your rights, especially if there are children involved and also to make sure that financial aspects of the final divorce are legal and all rights are preserved. However, using the services of a mediator can be very helpful (and save legal fees!) in setting up some of the more routine details and arrangements – equitable division of property, details of physical custody sharing of the children, and so forth. In divorce cases, it’s the practice of some mediators not to couch the mediated agreement as a “final agreement”, but as something like a “Memorandum of Understanding”, signed by the parties, that they can give to their respective lawyers for review. It’s an agreement in principle on certain details of the divorce agreement, and the lawyers can be left to write up the final legal documents while taking these items into consideration.
Above, it was discussed that mediation is distinct from arbitration (a difference of which most people are not aware, by the way). It should also be noted that mediation is not by any means therapy, or counselling. Although the mediator has to expect and be mindful of the often upset state of mind of the people participating in the mediation, the mediator’s sole job is to help them see if an agreement can be reached to resolve the situation.
Despite what mediators like to think, agreement cannot always be reached even after a well-run, good faith mediation. Sometimes the people involved just cannot see things in the same light. It’s not proper for a mediator to push for an agreement if one is clearly not going to happen. In fact, it’s a violation of the Mediator Code of Ethics to promise that an agreement will actually be reached after a mediation, or to accept payment for a mediation contingent on an agreement being reached, or on specific terms of the agreement such as settlement amount. This is to preclude any notion of bias on the part of the mediator, even to the point where he/she might push for an agreement where one was not going to happen. However, having said all that, in many cases there is an agreement to be found acceptable to everyone involved, and a good mediator will be able to find that middle ground and help the parties to come to terms.
Please allow me to remind you that nothing on this page constitutes legal advice.
And finally, for your amusement is a clip from the very funny “Wedding Crashers” which probably needs no further introduction from me. Having read this article, I hope you enjoy it!
NOT Real Mediation!
Anthony Matthews is a mediator practicing in the San Fernando Valley and Online, with a private practice focusing on individual and small business disputes. He has a law degree from Cambridge, and also volunteers regularly for the Los Angeles Superior Court, mediating Small Claims, Civil Harassment, and Unlawful Detainer(Eviction) cases. If you have any questions or are interested in his mediation services, please contact him at mediator [at] adrmcr.com.