Mediation is an alternative dispute resolution process in which the parties meet with a neutral third party to resolve any dispute and reach an acceptable solution. It's important to note that mediation is not a legally binding process, meaning that parties cannot be forced to accept a resolution. However, once the parties execute an agreed settlement agreement, the terms of the agreement become legally binding. Mediation is commonly used in the course of litigation, especially during family law proceedings.
A court may require the parties to attend mediation before the divorce hearing, the modification of the parenting schedule, or child support. The mediator's role is to help the parties reach a quick resolution and mutual agreement, guiding and helping them when needed. The mediator will not reach a resolution for the parties or issue a verdict in favor of one of them. All decisions must be mutually agreed upon by the parties.
The advantage of attending mediation is that it is a non-binding process. This means that the parties cannot force the other to enter into an agreement or resolution. Rather, they must voluntarily accept any resolution. Mediators do not make decisions or opinions; rather, they help the parties create their own voluntary agreement in a confidential environment.
The agreement, once signed by each party, is a binding contract. If an agreement cannot be reached in mediation, the parties reserve all their options of resorting to another form of ADR or taking the matter to court. Ideally, a mediator should have experience in the type of case in question, but a good mediator is like a diplomat who can help in any conflict. A key difference between arbitration and mediation is that an arbitrator can generally make a binding decision, while a mediator cannot.
Knowing the legal restrictions that mediation entails is extremely important before entering a situation where a mediator is used. The key is not to wait too late to mediate: if you wait until just before the trial date, you'll have spent a lot of time and money that you could have saved with earlier mediation. For the mediation agreement to be legally binding, the parties must reduce the agreement to drafting a contract or mediation agreement. If the mediation does not end satisfactorily, the mediator will explain the next steps that the parties may consider.
Mediation works when the parties decide the terms of an agreement, without undue pressure from the mediator. You should explain if you will need your lawyer to attend the mediation sessions or if you will simply need their help in preparing for mediation or reviewing the agreement. It's also important to ensure that your mediator has received an academic background in dispute resolution and that they are recognized by a state bar association as a mediator.
