Mediation

A neutral facilitator who assists the parties to a dispute in communicating and negotiating a settlement.

The most popular form of alternative dispute resolution (ADR), mediation involves the appointment of a mediator who acts as a facilitator assisting the parties in communicating, essentially negotiating a settlement.

The Evidence Code of California, at §1115, defines mediation as:

"Mediation means a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement.

"Mediator means a neutral person who conducts a mediation (and) includes any person designated by a mediator either to assist in the mediation or to communicate with the participants in preparation for a mediation."

In Mylock v Champion International, Justice Ervin of the District Court of Appeal of Florida adopted these words:

"Mediation (is) a method of nonbinding dispute resolution involving a neutral third party who tries to help the disputing parties reach a mutually agreeable solution."

The mediator does not adjudicate the issues in dispute or to force a compromise; only the parties, of their own volition, can shift their position in order to achieve a settlement.

In Travelers Casualty, Justice Rubin of the US Court of appeal wrote:

"(M)ediation ... is essentially a process where a neutral third party who has no authoritative decision making power intervenes in a dispute to help the disputants voluntarily reach their own mutually acceptable agreement.

"Mediation generally falls into two categories. The first is traditional or classic mediation, where attorneys are not present, the mediator meets directly with the parties to facilitate negotiations, and the mediator is passive, expressing neither judgment nor opinion on the merits. The second is the type of mediation conducted as part of voluntary settlement conferences. In that form, lawyers are present and the mediator takes a more active role, often expressing an opinion on the merits but without authority to reach a decision.

"Critical to either process is the concept of self-determination, leaving the parties in control of resolving their own dispute. Self-determination commits the parties to their settlement terms because they have made decisions by themselves instead of having a resolution imposed on them by a third party.

"The function of the mediator, therefore, is to facilitate the parties to voluntarily reach their own agreement."

Mediation discussions are usually conducted confidentially and on a without prejudice basis; that is, that nothing anyone says at mediation can or would later be used in a court of law against them. For example, §1119 of the California Evidence Code represents terms common to many a mediation agreement:

"No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.

"No writing ... that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation, is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.

"All communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential. "

Persons seeking mediation often enlist the assistance of a neutral facilitator with some specialized knowledge as to the dispute at issue. For example, a dispute on an engineering project might attract a mediator who is herself an engineer. A family law matter might be best resolved by a person with knowledge on family law, such as a family law attorney.

The result of a successful mediation is a binding agreement between the parties which resolves the dispute: a settlement.

In Russell on Arbitration, the authors note that:

"The expressions mediation and conciliation are often used interchangeably and the processes are difficult to distinguish in practice. The term mediation has become more popular in recent years."

In the research of this definition, Duhaime.org wishes to acknowledge the generous assistance of lawyer Christine Mingie of Vancouver, British Columbia, author of British Columbia Commercial Arbitration (Vancouver: Continuing Legal Education Society of BC, 2004).

REFERENCES:

• California Evidence Code
• Duhaime, Lloyd, ADR: A Glossary of Terms
• Duhaime, Lloyd, Legal Definition of Arbitration
• Duhaime, Lloyd, Legal Definition of Alternate Dispute Resolution
• Duhaime, Lloyd, Legal Definition of Med/Arb
• Mylock v Champion International 906 So.2d 363 (2005)
• Sutton, D., and Gill, J., Russell on Arbitration 23rd Ed. (London: Sweet & Maxwell, 2003), page 41.
• Travellers Casualty and Suerty Company v Superior Court of Los Angeles 24 Cal. Rptr. 3d 751 (2005)