Mediation offers a controlled, productive forum for discussion of issues that may be causing a dispute. When it is conducted properly, mediation can help parties move away from legal concepts of fault and toward a focus on people’s perceptions of the situation and each party’s real needs and interests. This often can do more to truly resolve the problem than a formal hearing in court would, but it only works when all parties are willing to participate honestly and respectfully. It is best for each participant to come to mediation without any preconceived “bottom lines” and be open to new ideas for resolution.
A mediator will generally hold a joint session to set an agenda, define the issues and ascertain each party’s position and/or concerns. This may be followed by caucus sessions (private meetings) to discuss the strengths and weaknesses of each party’s case and a discussion of what each party wants to accomplish through settlement. Information discussed in caucus remains confidential unless the parties agree to share it.
Once all participants have had a chance to discuss their positions and goals for settlement, the mediator will try to reach a compromise that can be acceptable to both sides. If a compromise is reached, the mediator will draft a settlement agreement which both parties must sign before the case can be dismissed. If a settlement cannot be reached, the mediator will tell both parties that they are at an impasse and a judge or jury will decide the case in court.