What is mediation?
Mediation is a process in which a trained impartial person, called a mediator, helps people in a dispute communicate, understand each other, and reach agreement if possible. Mediation is voluntary, confidential,
and lets the people in the dispute decide what works best for them.
- Mediation is a voluntary process. In all mediations, if the participants cannot come up with a solution that meets their needs, they cannot be forced to agree to anything. Agreements reached in mediation are only final when all of the participants are satisfied and willing to sign their names to the agreement. While a court may order parties to attend mediation, it cannot order them to reach an agreement. If the parties in court-ordered mediation do not reach an agreement, they can still proceed with their case in court. Mediators may not be called to
testify about any mediation communications, and mediators are expected
to keep information confidential.
- Mediation is a confidential process. A mediator must keep what was discussed in mediation confidential and
cannot be used in court. There are a few exceptions when it comes to child abuse, imminent threats of harm to a person, or allegations of duress or fraud. Parties can decide if they, the parties must keep the discussion confidential and, even some agreements reached can be kept confidential.
- Mediation Lets You Decide. Mediation revolves around the principle of self-determination. That means that the participants with the dispute decide what solutions will work for
them. The mediator does not act as a judge. The mediator remains impartial throughout the process and will not give legal advice or make decisions about the dispute.
Maryland Mediation and Conflict Resolution Office, Consumers’ Guide, Alternative Dispute Resolution (ADR) Services in Maryland, page 8 (5th Edition 2009, Online edition updated March 2011) www.marylandmacro.org.
What if the other side gets out of control?
The goal for mediation is to set up a safe, confidential, and controlled environment. The participants and/or the mediator can set ground rules to maintain an atmosphere of mutual respect. If one side gets out of control verbally, the mediator will address the problem. If someone gets out of control physically, the mediator will take appropriate steps, most likely by terminating the session or calling the police.
If you and the other party(ies) feel uncomfortable around each other, it is possible for the mediation to proceed with the parties in separate rooms. The mediator meets with each side individually to discuss the conflict and carries the information back and forth without the parties meeting face to face.
What if I do not reach an agreement?
If an agreement is not reached, there is no penalty. If no agreement is reached, the parties have several options.
- You can leave the matter unresolved and move forward.
- You can reschedule another mediation session and continue to discuss the unresolved issues.
- You can move to another process, such as arbitration.
- You can file a lawsuit or if the matter is already in court, proceed to trial on the court case and let the judge resolve the matter.
The parties have the option to continue with the mediation sessions or discontinue them. In a court-referred mediation case, the mediation is simply reported as unsuccessful and the case moves forward in the courts.
What if the other side later refuses to follow the agreement?
Often participants will include in the agreement what is to happen if one side does not comply with the agreement. If the agreement does not include such a provision then you need to decide how important the failure to follow the agreement is to you. That is, is it only one small part of the agreement, or a major part of the agreement. If you decide that the failure to follow the agreement is important to you, there are several things you can do:
- You can ask the party to return to mediation to see if you can resolve the disagreement. Try to anticipate this problem by addressing this issue in the agreement itself. You can include a provision in the agreement that allows for more mediation sessions if one side is not following the agreement.
- The signed agreement that you and the other party entered into is considered a contract. You can ask a court to find that the contract was broken and order the other side to follow the agreement. To do this you may want to talk with a lawyer first about how to proceed and decide whether you want a lawyer to help you.