Mediation is a common method of dispute resolution in today’s legal landscape. For many, mediation may be more commonly associated with resolution of family legal matters, but the reality is, mediation has assumed importance as an alternative to determination of cases in court. With increasing frequency, conflicts of all types are being addressed and settled through the mediation process. Disputes involving personal injury, employment, real property, neighbor relations, consumer matters, landlord-tenant relations, family issues and other types of civil (i.e., non-criminal) matters, whether or not they have been filed in court, are increasingly resolved through the mediation process.

The term “mediation process” is used advisedly because mediation is process driven, and it must proceed upon the basis of several key principles. The mediation of a dispute extends beyond simply the choosing of a third-party neutral to assist in resolution, although the selection of a mediator is one critical component of the process. A successful mediation requires engagement by all parties in a process which recognizes its key principles.

Decisions are Voluntary

A first crucial principle of the mediation process is its voluntary nature. A dispute cannot be resolved by agreement unless all parties have agreed to submit their dispute to the mediation process. All parties must agree to participate, and to engage in the process voluntarily, with the understanding that they always have the right to withdraw their consent. Success means a voluntary agreement, and mediation will never impose a coercive result. It is important to understand that, unlike the result of court action, any decisions made during the mediation are made freely and voluntarily.

Informed Consent

Next, parties to the mediation process must also operate in a setting of informed consent. Their participation must be based upon their knowledge of, and consent to utilize, all available information and the mediation process to address their dispute. They must be informed of their rights and options in the mediation process, which include their ability to express their concerns and identify their interests in the outcome. The parties’ knowledgeable consent to the process is essential to the mediation’s success.

The Role of the Mediator

Confidentiality and neutrality of the mediator are also essential components of the mediation process. To reach a voluntary outcome, one acceptable to the parties, a mediator must maintain absolute neutrality in word and in deed. The parties must be able to trust that the mediator treats the interests of all parties with equal concern and respect. The parties must also trust that their discussions with the mediator, in which they may privately share their concerns, fears and hopes, will be kept confidential, and will only be revealed upon their express consent for the purpose of furthering efforts at resolution of the dispute.

Concept of Self-Determination

Finally, a successful mediation is premised upon the concept of self-determination. Unlike court action, in which a result is imposed upon the parties by a disinterested third party – a judge or a jury – dispute resolution through mediation is accomplished by the parties themselves. They are guided in the process by the neutral mediator, but the substantive result of the process, one in which the parties reach an agreement on disputed items, is attained by their own efforts.

Anyone seeking to address and resolve a conflict or dispute should consider proposing to other parties that they engage in the mediation process. If everyone agrees to pursue mediation, selection of a knowledgeable and experienced mediator is the important next step. The mediator will then facilitate a process which is voluntary, informed, confidential and neutral, and which will very likely result in a successful resolution and agreement.

Attorney Eric Finamore is a litigator in our Litigation practice and resolves a wide variety of disputes for our clients as a mediator. Learn more about Eric Finamore through his attorney profile and this article.

This Article is not legal advice and should not be taken as such or relied upon as legal advice.