Mediation may be thought of as assisted negotiation. Central to mediation is the concept of informed consent. Both participants need to understand the nature of a contemplated mediation process and effectively consent to participate in the described process.
In a mediation, the parties cannot be compelled to disclose information that they prefer to keep confidential. If, in order to promote resolution of the dispute, a party chooses to disclose confidential information or make admissions, that information cannot be provided to anyone – including in subsequent court litigation or arbitration, outside the context of the mediation.
If you’re considering having a lawyer help you mediate, you should look for an attorney who truly supports the process and is able to change gears to focus on helping you and the other party work out a compromise solution.
In most mediations, you don’t need a lawyer’s direct participation. People who are mediating are less likely to need an advocate because they are trying to work together to solve their problem — not trying to convince a judge or arbitrator of their point of view. Because mediation rules are few and straightforward, people can usually handle the process on their own without too much trouble. If your case involves substantial property or legal rights, however, you may want to consult with a lawyer before the mediation to discuss the legal consequences of possible settlement terms. You may also want to make getting a lawyer’s approval a condition of any agreement you make in mediation.
Some important qualities of mediation:
- Voluntary – You can leave at any time for any reason.
- Collaborative – As no participant in mediation can impose anything on anyone, everyone is motivated to work together to solve the issues and reach best agreements.
- Controlled – Each participant has complete decision-making power and a veto over each and every provision of any mediated agreement. Nothing can be imposed on you.
- Confidential – Mediation is generally confidential, as you desire and agree, be that by statute, contract, rules of evidence and/or privilege. Mediation discussions and all materials developed for a mediation are generally not admissible in any subsequent court or other contested proceeding, except for a finalized and signed mediated agreement. Your mediator is obligated to describe the extent of mediation confidentiality and exceptions to that confidentiality. The extent of confidentiality for any caucus meetings should also be defined.
- Informed – The mediation process offers a full opportunity to obtain and incorporate legal and other expert information and advice. Individual or mutually acceptable experts can be retained. Expert advice is never determinative in mediation. The participants always retain decision-making power. Mediators are bound to encourage parties to obtain legal counsel and to advise them to have any mediated agreement involving legal issues reviewed by independent legal counsel prior to signing. Whether legal advice is sought is, ultimately, a decision of each mediation participant.
- Impartial, Neutral, Balanced and Safe – The mediator has an equal and balanced responsibility to assist each mediating party and cannot favor the interests of any one party over another, nor should the mediator favor a particular result in the mediation. Your mediator is ethically obligated to acknowledge any substantive bias on issues in discussion. The mediator’s role is to ensure that parties reach agreements in a voluntarily and informed manner, and not as a result of coercion or intimidation.
- Self-Responsible and Satisfying – Based upon having actively participated in voluntarily resolving issues, participant satisfaction and the likelihood of compliance are found to be elevated through mediation compared to court options.