What Mediation Is (and What It Isn’t)

In a nutshell, mediation is a voluntary, confidential, non-adversarial process facilitated by a neutral third party (the mediator). It’s an alternative to going to court. Let’s break it down.

Mediation is:

  • Voluntary means you make the choice to attend. On top of that, you’re making the choice to participate and give your best effort to the process. If you’re unsatisfied with the process, you can stop it at any time.

  • You will have a neutral party there to guide the conversation. But that mediator will not take sides or make decisions.

  • It’s a confidential process because nothing you say during the mediation will be shared outside of the mediation. It’s set up like this so you can be completely open without fear of having your words used against you in litigation or in any other scenario. There are some exceptions, such as a disclosure of child abuse, commission of a crime, or if the mediator has to defend herself in court in a legal claim.

  • In a mediation, you’re in control. The mediator does not decide the outcome (unlike a judge or arbitrator) but helps parties communicate and explore options. Mediation is meant to be collaborative. The goal is to find a resolution that satisfies both parties. It can often be faster, less expensive, and less emotionally burdensome than full litigation.

Mediation is not:

  • Mediation is non-binding, which means it doesn’t count for anything unless you sign a formal agreement at the end. Any agreement you sign at the end of the mediation will be binding. It’s always a good idea to have an attorney review your agreement before you sign.

  • Mediation is not a legal proceeding, so it’s not you against the other party – it’s collaborative. Mediation won’t work if you approach it in an adversarial manner like court.

  • Your mediator will not provide legal advice or therapy services. But you’re welcome to bring your attorney or other support to mediation!

What You Can Expect to Happen at a Mediation

  • First, you’ll have a brief consultation with your mediator. You can ask questions to determine if mediation is the right fit for your case. Use this time to get a sense of the mediator’s style to see if they are a good fit for you.

  • The mediation process begins with an intake form. You’ll provide your mediator with essential background information, including your name, the nature of your conflict, and any relevant details such as experiences with domestic violence. You’ll review your intake form together so the mediator can start to understand your conflict. During this session, you’ll review the mediation agreement, which outlines the process and expectations. Both parties will take part in separate intakes.

  • A short technology rehearsal on Zoom ensures all participants are comfortable with the platform. Addressing technical issues early helps create a smooth and effective mediation experience.

  • On mediation day, the mediator will review the mediation agreement section by section, explaining ground rules and concepts such as confidentiality. You’ll be asked to sign the Mediation Agreement if you haven’t already. The mediator leads this portion to establish a safe and neutral environment.

  • Each party will have the opportunity to share their perspective on the conflict and identify key issues. The mediator facilitates this part of the session, takes notes, and may ask follow-up questions. Ground rules are enforced to maintain a respectful and safe space, but the mediator does not act as a therapist or attorney. You’ll be encouraged to share any relevant documentation.

  • With all issues identified, the negotiation phase begins. Control of the session shifts to the participants who work together to find common ground and explore creative solutions. The mediator guides the conversation, suggests ideas when there’s a roadblock, and ensures the discussion remains calm and neutral, even if emotions run high.

  • Once a collaborative solution is reached, the mediator drafts the agreement based on the discussion and notes. You can review and fine-tune the agreement. It’s recommended to have an attorney review the document before signing, but if you’re confident, you may sign immediately. If no agreement is reached, the process moves to step 9.

  • After approving the agreement, discuss with the mediator and the other party how the agreement will be implemented. Consider potential changes in circumstances and establish a process for modifying the agreement if needed. Address possible hurdles now to ensure the agreement stands the test of time.

  • The mediation concludes with either a signed agreement or a plan to review the agreement. If no resolution is reached, you may schedule additional sessions or allow time for reflection. If further mediation isn’t helpful, the conflict may proceed to litigation or other avenues.