Mediation can be thought of as assisted negotiation. A negotiation is a process of communication by which two or more parties attempt to reach an agreement. When parties take part in mediation, they use a neutral third party (the mediator) to help them try to reach an agreement. Mediation can be contrasted with litigation and arbitration, where the judge or arbitrator makes a decision for the parties. Mediation is also not marriage counseling and is not intended to try to save the marriage. The following is a list of some of the primary traits of mediation.
- Self Determined. Just like any other negotiation, no party to a mediation can be forced to agree to anything. The mediator is not a judge and cannot make any decisions regarding your case. Instead, the mediator will help the parties to explore possible options and try to reach their own agreement.
- Confidential. The mediator has a legal obligation to keep communications made during mediation confidential. Additionally, communications made during mediation are legally privileged, meaning that they cannot be used as evidence in court. There are some limited exceptions that are defined by statute. The most important exceptions in the family law context are threats of violence and communications indicating that a child has been abused or neglected. It is important to remember that information discussed in mediation can still be discovered and used as evidence by other means.
- Impartial. The mediator has an obligation to be impartial and to reveal any conflicts of interest the mediator may have. However, this does not mean that the mediator will be neutral towards all positions taken by a party. For example, some mediators will adhere to principles, such as trying to reach an agreement that is in the children’s best interests, and will try to ensure that the parties stay focused on that goal. Additionally, many mediators will end the mediation if they believe that it is resulting in an outcome that is obviously unfair.
- Controlled. Every mediator is different in the way he or she will structure and handle a mediation. For example, some mediators regularly caucus (meet separately) with each party, while others never do so. However, no matter the process used, the mediator will try to ensure a safe environment where the parties can appropriately voice their concerns and opinions and positively work towards solutions.