Mediation



Mediation

Outline

Introduction

Mediation refers to one of several methods used to resolve legal disputes other than through formal court trial. Mediation and arbitration constitute methods of "alternative dispute resolution" (ADR). Arbitration is used as a substitute for trial, but mediation merely assists the parties in reaching their own resolution of a disputed matter. Instead of a judge or jury rendering a judgment or verdict, or an arbitrator rendering a binding decision, a "mediator" merely facilitates open discussion and tries to assist the parties in resolving their differences on their own. Mediation thus avoids the "win-lose" set-up of a trial or arbitration.

Discussion

Those who go through formal mediation tend to achieve settlement through their own spirit of mutual compromise. For that reason, mediation may be particularly helpful or appropriate in situations where parties have an ongoing relationship (neighbors, business associates, divorcing parents of minor children, etc.) and do not want that relationship destroyed by the adversarial process of trial. In addition to being less adversarial than trial or arbitration, mediation tends to be less expensive, faster, and nonbinding.

Usage Of Mediation

Mediation is used in virtually every type of dispute, from the smallest local tort case to the largest complex international affair. Mediation is used primarily to resolve disputes, but it has applications in dispute prevention, transactional bargaining, and planning. Mediation is most often used in discrete civil disputes such as divorce, problems between neighbors, employment problems, and commercial transactions gone awry, but it is also used in large-scale environmental cases, in disputes with governmental agencies (including, among others, the U.S. Internal Revenue Service), and in intellectual property and land use disputes. Many would say that if a dispute could be filed in a court, it could be mediated. However, mediation also may be used in cases in which a court would have no jurisdiction (such as peer-to-peer mediation between high school students having problems sharing a locker).

Facts about Mediation

In the United States, mediation has been instituted in nearly every administrative agency and every court. At the federal level, the Administrative Dispute Resolution Act of 1996, 5 U.S.C. § 571 (2000), and the Civil Justice Reform Act of 1990, 28 U.S.C. § 473 (2000), require that agencies and courts explore alternatives to trials for the disposition of cases. Mediation has become the most widely used alternative method. The vast majority of states have passed similar laws, with similar effect (Mantle, 2004).

Consensual Process

Mediation is consensual and voluntary, ...