What is Mediation?

Mediation is a form of alternative dispute resolution (ADR). (See the broader discussion of alternative dispute resolution below.)  It is a method of resolving disputes between two or more parties with the assistance of a third party neutral. The third party neutral (the mediator) facilitates the parties reaching an agreement or resolution to the dispute with the goal of entering into a written mediated settlement agreement.

Mediation is a process that offers a structure, timetable and dynamics that “ordinary” negotiation lacks. The mediation process is private and confidential. Participation by the parties is voluntary. The mediator acts as a neutral third party and facilitates rather than directs the process. In mediation, the party participants are in full control of the decision-making process.

What is Alternative Dispute Resolution (ADR)?

Alternative dispute resolution (also referred to as “ADR”) is any method of resolving a dispute outside of the courtroom.  ADR can include early neutral evaluation, negotiation, conciliation, mediation and arbitration.  Most disputing parties generally begin the resolution process with negotiation, especially in the areas of business and real estate disputes.  It is only when the negotiations break down that the parties seek other avenues to resolve their dispute.  After the initial negotiations, the two most popular forms of ADR are arbitration and mediation. 

Arbitration is a simplified version of a trial with limited discovery and simplified rules of evidence.  In an arbitration, the parties select the arbitrators by agreement or each party selects and arbitrator and the arbitrators select a third to serve on the panel.  The parties present their respective positions to the arbitral panel (or a single arbitrator, as the case may be).  The abitrator(s) consider the information and make a decision.  Unlike mediations (explained above) where the parties remain the decision makers with the assistance of a neutral third party (the mediator), the outcome of the dispute in arbitrations are decided by the arbitral panel.  The expectation of arbitration is that it is less expensive that litigation and allows the parties to reach resolution of the dispute more quickly than litigation. 

In addition to mediation and arbitration, in the family law setting there is a burgeoning area of alternative dispute resolution know as collaborative law.  In this process, the divorcing spouses execute an agreement with each other and their attorneys that all parties will work together to reach resolution without resorting to litigation.  In the event that either party decides to pursue litigation, both attorneys must withdraw representation and the parties must retain new attorneys.  This is intended to encourage all parties (and their lawyers) to commit to the alternative dispute resolution process.