Unlike litigation where a judge decides, it is the parties who agree to resolve their conflict through consent.
Mediation works best as a voluntary process in which the parties make decisions together based on their understanding of their own views, each other’s and the reality they face. The mediator is there to work as a non-coercive neutral to help the parties negotiate an agreement that serves them better than their alternatives. Mediation is not counseling although in the process the parties are encouraged to discuss their interests and concerns. A certain amount of venting occurs but the mediator is there to listen and understand the concerns of the parties as they go underneath the surface of the issues.
The mediator as a neutral party balances the intensity of the parties so they can hear each other and frame settlement options that meets their needs and interests.
Mediation is not arbitration. The mediator helps the participants arrive at their own solution rather than imposing a decision based on evidence presented at a hearing.
In mediation it is important that law is respected and the parties understand their rights under the law. Participants are encouraged to obtain independent advice from attorneys, counselors and financial advisors during the parties. Attorneys are invited to be present and participate in the mediation process. However, in mediation the parties are free to reach their own agreements in a form that best meets their needs and interests.
There are numerous approaches to mediation and the mediator chooses the approach that is best suited to the objectives and particulars of each mediation. One approach is called caucusing. In this process the mediator meets with each person separately to help relieve tension, allow for the mediator to act as a sounding board or test if a particular proposal is realistic.
The underlying concepts in the Understanding Based Approach is that the parties work together with the mediator as a facilitator. In this process the parties own their conflict and are guided to develop an understanding to go under the surface of the conflict. The parties work together maintaining both autonomy and connection, proceeding by agreement through to the development of options for settlement and finally an agreement.
In both processes it is important for the mediator to understand each parties views (which can be very different) and assist the parties to understand and assert their own views. Essentially the door to resolution comes when the parties understand each other.
Any disclosure made during mediation session is confidential and cannot be used for subsequent litigation. There are however specific exceptions.