Mediation is a voluntary and informal process used to resolve disputes with
the assistance of a neutral third party, known as the mediator. The mediator
facilitates communication between the parties involved and helps them reach a
mutually acceptable agreement. Here's the typical procedure for mediation:
Initial Contact and Agreement to Mediate:
The parties involved in the dispute decide to pursue mediation as a means of
resolving their issues. They agree to participate voluntarily and usually sign
an agreement to mediate, which sets out the ground rules and confidentiality
provisions for the process.
Selection of Mediator:
The parties may select a mediator together, or the mediator may be appointed by
a court or an external organization. The mediator should be impartial and
neutral, with no personal interest in the outcome of the dispute.
The mediation process begins with an opening session where the mediator
introduces themselves and explains the mediation process and ground rules. Each
party has the opportunity to present their perspective on the issue and their
interests in resolving it.
Private Sessions (Caucuses) and Joint Sessions:
The mediator may hold private sessions with each party separately (caucuses) to
better understand their concerns, interests, and possible solutions. The
mediator will then facilitate joint sessions where all parties come together to
discuss the issues and explore potential solutions.
Identifying Issues and Interests:
The mediator helps the parties identify the key issues in the dispute and
explores the underlying interests and needs of each party. This helps in finding
creative solutions that meet the interests of all parties involved.
Negotiation and Problem-Solving:
During joint sessions, the mediator assists the parties in negotiating and
brainstorming possible solutions. The mediator encourages open communication and
helps the parties work through their differences constructively.
Drafting the Agreement:
If the parties reach a resolution, the mediator helps draft a written agreement
that outlines the terms of the settlement. The agreement is generally
non-binding until all parties sign it.
Finalizing the Agreement:
Once all parties agree on the terms, they sign the written agreement. Depending
on the jurisdiction, the agreement may be enforceable as a legally binding
The mediation process concludes with a closing session, where the mediator
summarizes the key points of the agreement and ensures that all parties
understand the terms. The parties may express their satisfaction with the
process and the outcome.
Enforcement of the Agreement:
If the agreement is legally binding, the parties are expected to fulfill their
obligations as outlined in the settlement. If any party fails to comply, the
other party may seek enforcement through appropriate legal channels.
Mediation is generally confidential, meaning that discussions and statements
made during the process cannot be used as evidence in court if the mediation
fails to reach a resolution. It provides parties with an opportunity to maintain
control over the outcome of their dispute and can be a more cost-effective and
time-efficient alternative to litigation. However, it's important to consult
with legal counsel to understand the potential legal implications and
enforceability of any settlement reached through mediation.