What Is Mediation, Exactly?

“An ounce of mediation is worth a pound of arbitration and a ton of litigation!” — Joseph Grynbaum

One of the most frequent questions I am asked when a prospective client calls for a consult is: what IS mediation exactly?
 
I respond by describing mediation and comparing and contrasting mediation to other methods of dispute resolution, such as retaining lawyers and litigating, hiring an arbitrator and using arbitration, or retaining lawyers and agreeing to use collaborative practice.
 
Here is how I describe mediation to new clients:

• The process is confidential and voluntary
• As a neutral mediator, I facilitate communication and negotiation and manage the mediation process
• I teach the parties how to use interest-based negotiation (as described in Getting to Yes by Roger Fisher and William Ury), which includes: (1) separate the people from the problem, (2) focus on interests, not positions, (3) invent options for mutual gain,  (4) insist on objective criteria, and know your BATNA (Best Alternative to a Negotiated Agreement)
• The parties are empowered throughout the process to control the outcome (don’t let anyone take away your power!)
• Each party identifies the issues, brainstorms solutions to each issue, and evaluates each solution
• We talk about one issue at a time
• One person talks at a time; the other person listens
• Listening to each other does not mean agreeing with each other
• In every mediation there are two perspectives; having two perspectives does not mean one party is lying or is wrong
• As mediator, I assemble a team of advisors to help as needed, such as a financial neutral/analyst, therapist, real estate appraiser, accountant, lawyer, health insurance broker
• Joint decisions are reached on each issue
• I draft an agreement in plain English based on these joint decisions
• Each party has a right to consult with an attorney throughout the process and to ask the attorney review the agreement
• Once signed, the agreement is binding; prior to signing, mediation consists of brainstorming and problem solving
• Mediators are trained to acknowledge and validate emotions throughout the process
• Each mediation session is scheduled for 2 hours; homework assignments may be given 
• Parties go at their own pace; some parties resolve all issues in one session and other parties use multiple sessions

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