Frequently Asked Questions About Mediation
Topics on this page
- Is mediation the right choice for me?
- I want mediation. How can I get the other side to agree to mediation?
- Can a mediation service help me convince the other side to mediate?
- Should I look for an attorney or a mediator.
- Should I have both an attorney and a mediator?
- What happens if the other side gets out of control?
- What if I do not reach an agreement?
- What if the other side later refuses to follow the agreement?
- Is arbitration and mediation the same thing?
- When will a court enforce a private mediation or arbitrator's decision?
- What is a large group dispute resolution facilitator?
Whether mediation is the right choice for you will depend on the specific facts and circumstances of your situation. Consider the following:
Your relationship with the other party.
- Do you and the other side have a stake in an ongoing relationship? Families and neighbors are good examples of situations where the parties expect to see one another again and need to interact.
- Are you and the other person somewhat equal in power? If so, mediation maybe a good choice. If not, going to court to litigate (ask the judge or a jury to decide) may be the best choice.
- Do you need information that the other side might hide to resolve the dispute? Mediation is particularly suitable if the information needed to resolve the dispute is pretty much known to everyone involved. If you think that the other side is unlikely to reveal this information without being formally asked to do so, mediation might not be the best option.
Is my dispute over something that can be resolved by mediation?
- Probably YES - Family conflicts are often a good choice for mediation because the parties are usually linked by family ties/relationships that will continue to exist even after the mediation is over. Disputes between neighbors, with businesses in the community, or other one-on-one conflicts are also often good candidates to consider for mediation because the relationship is likely to be ongoing, you are fairly equal in power, and each participant likely knows the information about the dispute.
- Probably NO - Certain types of cases do not lend themselves to mediation (e.g., domestic violence, or cases against a large or distant company often involve). These raise issues related to significant differences in power between the parties as well as differences in who has information. For situations where the other side has information that is needed to resolve the dispute, but is unwilling to do so without formal discovery, you may need court processes, such as discovery, that are not available in mediation.
Be realistic about a fair outcome. Make a fair assessment by learning about the types of relief (outcomes a court can order) that is available to you in a particular case. You can find some of that information here on this website, or you can contact an attorney for advice on the law as it applies to your case and whether your case might be a good candidate for mediation. You can also contact a mediator for help to decide if you might have a case in which mediation will help. Remember that only an attorney can make a legal assessment of your case. Put aside some of your emotions, and look at the long term picture. This is particularly important in disputes with family or neighbors.
If you've been ordered into mediation by a court or if contract terms require mediation of disputes, there is usually little difficulty getting the other side into the mediation room. More often, if you get embroiled in a serious dispute, there will be no court to prod you into mediation. If you want to mediate, it will be up to you to get the process started. Unless you know for a fact that the other side is willing to mediate, expect some reluctance. If the dispute has gone very far, the other person may almost automatically oppose anything you propose.
Consider an indirect request for mediation. For example, ask a mediation organization to extend the invitation to mediate. This means your first step is to find a mediation organization that is appropriate for your dispute. Although individuals also offer mediation services, organizations are generally more skilled at getting people to the negotiating table. Learn about finding a mediator.
After you find one or two organizations, call them and explain your situation. If one of them seems to be a good choice to work with you to get the mediation started, the next step is to write a short, polite letter to the other side explaining that you want to mediate and will be contacting a mediation service. Avoid saying anything that is likely to trigger a defensive response. Here are some suggestions:
- State that you would like to try mediation and list some reasons why (e.g., because it's an efficient, low cost, no-risk approach).
- Do not try to persuade the other person to mediate. Leave it to the mediation organization.
- Never threaten the other person. For example, do not write, "If you don't agree to mediation, I will have no recourse but to commence a lawsuit."
- State clearly that you have no personal connection with the mediation organization other than contacting it for this mediation.
- Let the other person know that the mediation service will be calling.
Yes. Once you tell the mediation organization to go ahead, it most likely will send a letter and supporting materials to the other side, emphasizing the benefits of mediation, including low cost, privacy and speed. If you use a private mediation company, the letter will also likely point out the high quality of the people on their mediation panels, the simplicity of the process, and competitive pricing.
If the mediation organization doesn't get a response to this initial mailing within a week or two, a staff person, often called a "case manager" or "case coordinator," will usually follow up with a phone call to answer the other side's questions about mediation and review mediation's potential benefits. If the other side declines to participate based on a lawyer's advice, the staffer may ask permission to call the lawyer directly to be sure the lawyer understands mediation.
This will depend on the type of case you have and the outcome you are seeking. While, in many instances a mediator may be an attorney, the mediator is not your attorney. Mediators and attorneys have different roles. Attorneys represent their clients' interests and advise them on the best way to present their case. Attorneys can discuss with you what may happen in court and the ways to get hoped-for results. In contrast, a mediator doesn't give legal advice and does not represent either side of a dispute, even if the mediator is also an attorney. In mediation, you speak for yourself rather than having a lawyer speak for you.
That depends. Mediation can be used to resolve a variety of disputes, from relatively simple small claims issues to more important ones, like those involving divorce. The more serious the conflict you have with another person, the more likely it is you may want an attorney to assist you.
If you decide to mediate, you may not need to have an attorney fully represent you. Instead, you can ask an attorney for limited representation. For example, you can ask an attorney to help with a variety of tasks, such as giving you information about your legal rights, advising you on your particular situation, or reviewing any agreement that may come out of mediation.
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 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.
If an agreement is not reached, there is no penalty, and there may be several options.
- Leave the matter unresolved and move forward.
- Schedule another mediation session and continue to discuss the unresolved issues.
- Move to another process, such as arbitration.
- File a lawsuit. If the matter is already in court, proceed to trial on the court case, and let the judge resolve the matter.
Try to anticipate this problem by addressing this issue in the agreement itself by including provisions about what happens if one side does not comply with the agreement. For example, you can include a provision in the agreement that allows for more mediation sessions if one side does not follow 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. Is it only one small part of the agreement or a major part? If you decide that the failure to follow the agreement is important to you, consider asking the party to return to mediation to see if you can resolve the disagreement.
Another option is to go to court. 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 breached and order the other side to follow the agreement. If considering court involvement, you may want to talk with a lawyer first about how to proceed, and then decide whether you want a lawyer to help you with your case.
No. Both arbitrators and mediators are neutral parties. However, while arbitrator listens to each party's arguments, the arbitrator does not help the parties discuss their conflict with each other. Often the arbitrator is an individual who has specific knowledge about the technical issues involved in the dispute.
Unless you and the other parties have otherwise agreed in writing, the arbitrator makes the decision about how the dispute will be resolved. One common type of arbitration is "binding arbitration". In this case, the arbitrator's decision is binding on you and the other parties; you and the other parties must live with and follow the agreement unless you have agreed beforehand that the arbitrator's decision is not final.
A court will not enforce a private mediation or an arbitrator's decision unless you or one of the other parties file a lawsuit asking the court to enforce it. The court will only enforce a signed mediation agreement.
Facilitation is often used when there are many interested parties or stakeholders and it differs from mediation. Mediation tends to focus on a single-issue dispute between a small number of people (2-4 or so). The large group dispute resolution facilitator helps a large number of people work out a dispute (usually 6 or more people). The facilitator is part of a joint effect to design and oversee the process of resolving a dispute. The facilitator will help to set up the ground rules for how the dispute will be resolved.
The goals of the facilitator are to:
- help the parties to better exchange information;
- work with the parties to develop a proposed agreement; and
- help the parties to evaluate the agreement that might lead to a resolution of the problem or reach a goal or complete a task to the mutual satisfaction of participants.