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The Mediation Process

What is Mediation?

The following explanation of the mediation process will help you in deciding if mediation is right for you. The procedures discussed are those typically followed in the mediation of a dispute; however, every case is different and flexibility is key to the mediation process.

Mediation can best be described as an assisted negotiation process. The mediator is a neutral, unbiased, third party who is hired jointly by the disputing parties to help them reach a mutually acceptable resolution. The parties control the process and decide whether or not an acceptable settlement can be reached through the negotiation process. Mediators have no authority to make decisions for the parties or issue any orders; they help the parties reach their own agreement. Mediation can be conducted in person, or virtually through Zoom or similar platforms. 

Mediation is usually less formal than court or arbitration. Before mediation commences, the parties and the mediator may agree upon some basic ground rules that will be followed. The parties can arrange for the mediation to be conducted in a way that makes the most sense for them and the mediator based on the nature of the dispute. Mediation provides a forum for a confidential discussion of issues and allows for the free exchange of ideas. Therefore, the process allows the parties to determine their interests and a solution that satisfies those interests.

The mediator can be an invaluable resource to all participants in the mediation process. The mediation process is designed to keep the parties focused and moving forward to a mutually agreeable resolution of their disputes. In litigation matters, mediation can be very beneficial in simply assuring that the parties have a time when they are all focused on seeking a resolution of the case.

In many cases, the mediator will conduct telephone conferences with the parties or their counsel or will be provided with written position statements and relevant documents by the parties prior to the mediation. This provides the mediator with an understanding of the nature of the dispute and those issues that impact the parties’ positions in advance and allows the mediation to be as productive as possible.

Mediation can be conducted in a joint session with the mediator and the parties all in the same room discussing the dispute and attempting to identify potential resolutions. More often, the parties wish to be in different rooms and have the mediator meet with each party separately, communicating offers or proposals from each party to the other. The mediator often shuttles back and forth between the parties, delivering settlement proposals and messages from one party to the other. The mediator keeps information from the private sessions confidential unless he or she is authorized to disclose it. The mediator will often act as a “devil’s advocate” in these sessions to explore how realistic the positions of the participants are and the risks and benefits of either resolving or not resolving the dispute. The mediator often assists parties to prioritize their interests and options for settlement and assess the strengths and weaknesses of their positions.

If a settlement is achieved, the parties will usually prepare a written memorandum setting forth the key terms of the agreement for each party to sign. In some cases, if no agreement is able to be reached at the mediation, additional telephone conferences may follow the formal mediation session in a continued effort to resolve the dispute.

In some situations, mediation is a process used to start communication between parties who need to develop the ability to communicate on a regular basis, such as when working to resolve family disputes. The mediator acts as a communication tool between opposing interests attempting to bring them together by defining issues and eliminating obstacles to communication while guiding the process to reduce conflict.

By facilitating a productive environment for parties to express their needs and interests, discuss options and reach a mutually beneficial resolution, mediation can preserve important relationships. Mediators assure the fairness of the process, facilitate communication, and maintain balance in the process.

Ultimately, the goal of mediation, where possible, is to achieve “win-win” solutions.

What Kinds of Cases Can Be Mediated?

Mediation is a valuable option in nearly every kind of civil dispute. All levels of litigation matters can be resolved successfully through mediation. Even disputes that do not involve legal action can be good candidates for mediation. For example, family disputes or disputes between neighbors, that cause stress and tension, but do not merit a lawsuit, may be resolved by working with a mediator. Working with a mediator early may end a conflict before it escalates.

Most courts in Colorado have recognized the value of mediation and will order that the parties to lawsuits attend mandatory mediation before proceeding to a trial.

Mediation: About
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