What is Civil Mediation?
“Mediation is the intervention into a dispute or negotiation of an acceptable, impartial, neutral third party who has no authoritative
decision making power to assist contesting parties to voluntarily reach their own mutually acceptable settlement of issues or disputes.”
~ Christopher Moore, “The Mediation Process.”
Mediation is a form of settlement conducted and assisted by an impartial attorney/person trained in the art of settling disputes. Unlike arbitration and other kinds of alternative dispute resolution, mediation is non-adjudicatory. The mediator makes no findings of fact or law, whether binding or non-binding.
The mediation process, a private meeting, is comprised of several stages. First, all parties, and their counsel meet with the mediator in general session. During this session, the mediator explains the process and sets forth the ground rules. Afterward, each attorney outlines his or her clients’ theory of the case and the legal and factual issues. The clients are encouraged to speak, but are not required to do so. The mediator asks clarifying questions and determines areas of agreement.
After the general session, the parties separate to different conference rooms for private meetings called caucuses or private conferences, the second stage of mediation. These caucuses are confidential. Nothing said to the mediator during a caucus can be repeated outside the caucus except by permission of the party. This confidential meeting allows counsel and the parties to express matters that he or she would be unwilling to state in the presence of the other party and their counsel. At this stage, the mediator, the party and counsel undertake a candid discussion of risks, the party’s interests, generate options, and look at settlement flexibility, and strengths and weaknesses of the case. During the caucus stage, the mediator will facilitate negotiations between the parties, conveying settlement offers back and forth and provide insight based on experience to help the parties evaluate their case and position. A reality check is sometimes necessary to help the parties clarify and narrow the issues of the complaint or dispute.
When it appears that a consensus has been reached, the mediator assists the parties in memorializing the essential terms of the agreement, which is signed by each party. This signed agreement is binding on the parties.
The entire proceeding is privileged and confidential. Indeed, the law prohibits the mediator or any party telling the court anything said during the mediation. At most, the mediator may report the case did or did not settle.