Mediation is a process in which a neutral, trained mediator helps parties negotiate a mutually acceptable resolution to the parties’ dispute. The mediator does not decide the case or tell the parties what to do. In most instances, mediation is confidential. Mediation may be a contractual pre-requisite to filing a lawsuit or commencing arbitration proceedings, ordered by a court, or voluntary.

Mediators are trained professionals who are certified to mediate disputes. They are not required to be attorneys. There are public mediators as well as private mediators. For example, some courts have mediators on staff who assist parties in mediating their disputes. Public entities such as counties, home-rule municipalities, cities, and towns may provide mediators to assist their constituents. Private mediators may work independently or in connection with a mediation service or group. Private mediators charge a fee for their services.

A mediator may request the parties to sign a mediation agreement. At a minimum, a mediation agreement will set the date, time, and location of the mediation, underscore the confidential nature of mediation, the mediator’s expectations of the parties, and if a private mediator is used, identify how and when the mediator will be paid.

A mediator may request the parties to submit confidential mediation statements by a set deadline in advance of the mediation. Only the mediator reviews the confidential mediation statements. Confidential mediation statements are used to educate the mediator about the factual and legal disputes in the case as well as the damages sought and perceived likelihood of success in recovering those damages at trial or in arbitration.

Depending on the dispute and the nature of the parties’ relationship, the mediator may have all the parties and their attorneys in one room and guide their discussion to determine the issues, set an agenda, and work through the agenda with the parties. The mediator may also put the parties in separate rooms with their attorneys and speak with each side, going back and forth to try and broker a mutually agreed upon solution. Open, honest, and clear communication is critical to resolving the dispute. As a result, statements, admissions, and offers of settlement are typically confidential and prohibited from being used in court or arbitration against the opposing party.

If the parties reach a negotiated solution, mediation often ends with the parties signing a written settlement agreement. If the parties do not resolve their dispute in mediation, they may initiate or continue a case in court or arbitration, depending on the circumstances.

BHGR’s ADR and Litigation Groups have substantial experience guiding clients through the mediation process.