Mediation is a method of resolving issues between two or more parties without resulting to litigation. Mediation makes use of a neutral third party, a “mediator,” to help guide the parties to the dispute toward a solution that all can agree to. Most commonly, mediation is a voluntary method of alternative dispute resolution, but on occasion, the court may order the parties to attend mediation. To explore this concept, consider the following mediation definition.
Origin
1350-1400 Middle English mediation
Mediation is defined as the attempt to settle a dispute through a neutral third party. Mediation is a structured process that allows people to negotiate the issues with a hands-on approach. The mediator serves somewhat as a referee as the parties exchange information, needs, and ideas. The mediator also helps the parties with the bargaining process, where cooler heads prevail. Mediation is commonly used in family law matters, such as divorce and child custody, but it is also used in other civil cases.
While the purpose of mediation is the same in each case, a variety of mediation techniques used depend on the type of case, and how the mediator was trained. Historically, until the 1970s, the only mediation technique used was the “facilitative” technique. As the use of mediation became more popular, other methods were developed. Today, the three most common mediation techniques include (1) facilitative, (2) evaluative, and (3) transformative. Each technique has acknowledged benefits, as well as criticisms.
Facilitative mediation, the original mediation technique, entails the setting up of a very structured process to help the parties reach an agreement. The mediator asks questions, determines the interests and needs of the parties, validates their needs, and helps them normalize their points of view. With this technique, recommendations by the mediator are not made, nor does the mediator offer an opinion as to how a court might rule.
This technique is based on the settlement conferences held by judges. The mediator using the evaluative mediation technique informs each party as to the weak points of their case or position, giving a professional opinion as to how a judge is likely to rule on the matter. In evaluative mediation, the focus is on the legal concepts of fairness, and the legal rights of the parties, rather than on their individual interests and desires. The parties do not meet together in this type of mediation, but the mediator goes back and forth between the parties, presenting needs, concerns, and offers. This helps avoid emotional conflict that would otherwise enter the discussions.
This newest technique in mediation originated in the 1990s. Transformative mediation works to empower the parties, recognizing their needs, values, and points of view. Mediators using this technique encourage each party to think about the opposing party’s point of view and their interests, as well as their own. This requires the parties to meet together, with the mediator guiding the conversation, and encouraging the parties to work toward a positive outcome, not allowing them to get sidetracked in largely unimportant issues.
The type of mediation training required varies by jurisdiction. In order to be recognized by the courts as a qualified mediator, an individual must complete the required training, education, and experience required to obtain the certificate or license offered in the individual’s state. In states that do not define the required qualifications for mediators, many turn to national organizations, such as the American Arbitration Association (“AAA”), which offers its own mediation training courses and apprenticeships.
Mediation and arbitration have a number of similarities, as both provide alternatives to litigation. Both methods of alternative dispute resolution may also be used in conjunction with litigation, allowing the parties to continue their attempt to reach a resolution, while the case continues toward trial. In the event a settlement agreement is reached, the trial may be cancelled.
Mediation involves the use of a single third-party mediator, who remains neutral during the process. A mediator does not offer opinions or predict outcomes. Any agreement reached during mediation is non-binding, meaning that, if any of the parties change their mind, they can insist on continuing to trial.
Arbitration, on the other hand, may involve a single arbitrator, or a panel of 3-12 arbitrators, who hear the case much like a judge would. Arbitrators collect information and evidenced, question the parties, and advise the parties when there is a problem with their position. An arbitrator provides a written decision a few days after the arbitration has concluded, and in the case of a panel of arbitrators, the decision depends on a majority vote. Arbitration may be binding or non-binding.
When a couple files for divorce, disputes often arise over the division of marital property, as well as care and custody of the children. In many cases, each spouse hires an attorney to help them hash things out in court. An alternative option that can save both parties a great deal of time and money is divorce mediation. Such mediation takes place in the same manner as other civil mediation, with the mediator helping the parties arrive at a solution based on their own ideas of what is fair, rather than leaving the decisions up to a judge.
In addition to saving time and money, mediation often helps the couple improve communication between them, which many find helps in the future, especially if they have children together. Mediation is confidential, and gives each spouse a greater feeling of control over the outcome of their case compared to litigation.
Dividing up all the things the couple owned during their marriage, from large ticket items such as the family home and automobiles, to photographs and tchotchkes, is a source of conflict in many divorces. Trying to decide who gets what causes headaches and arguments, which often causes the parties to have difficulty communicating about other important issues.
While the judge in family court can divide up the marital assets, turning to a mediator to help resolve the dispute often helps each party determine what is rightfully theirs according to state laws, and come to an agreement on distributing personal items. Even with the help of a mediator, it is unlikely that the parties will see eye-to-eye on every issue, but the process of mediation helps them reach an agreement everyone can live with.
Family mediation, referred to as “child custody mediation,” in some jurisdictions, is designed to ensure the best interests of the children are taken care of in custody disputes. Most states offer some form of family mediation through their family court system, which may be entered voluntarily when the couple separates, or may be court-ordered.
During family mediation, the mediator gathers facts, questions both parents, and even interviews the children who are old enough to answer simple questions. The mediator then encourages the parents to focus on the future, and on providing the children with the best conflict-free family environment possible.
If the parents can reach an agreement as to the important issues of where the children will primarily live, how and when they will visit with the non-custodial parent, and other child care issues, their agreement will be presented to the judge for approval. In the event the parents cannot reach an agreement, the mediator will put together a parenting plan that is in the best interests of the children, and forward that to the judge. In most cases in which the mediator proposes a parenting plan, the court accepts it and makes it an order of the court.
In 2011, five former NCAA athletes filed a lawsuit against the association, claiming the NCAA had failed to provide a duty of care by ignoring the serious problem of players incurring concussions during play. The civil lawsuit claimed that the NCAA had refused to adopt standards and policies that would reduce the number of concussions suffered by players. In their lawsuit, the players demanded that the NCAA dole out $765 million to cover medical expenses and other damages for players who suffered from concussions or other serious injuries due to game play.
After two years of conflict, the representatives of both parties agreed to meet in mediation in an attempt to reach a settlement without going to trial. The parties reached a preliminary settlement in July 2014, in which the NCAA was to create a fund to pay for players to be tested for brain injuries if they sustained a concussion. The fund would not pay for treating the injuries, however. The following month, attorneys for the players rejected the preliminary settlement agreement and, as of early 2015, the parties are still in negotiations. This is a prime example of the non-binding nature of mediation, as the parties had reached a settlement agreement, which was later rejected.