Whether or not represented by a lawyer, many parties are nervous about mediation and may have a number of misconceptions about the process. While a good mediator normally explains some or all of the following points at the mediation, it is helpful to the mediator and the process if the client is aware of them ahead of time. This non-exhaustive list is the product of the author’s experience both as a mediator and as a lawyer representing parties in mediation.
- Unlike a judge/jury or arbitrator, a mediator does not decide the merits of your case. The sole purpose of a mediation is to assist the parties in reaching their own voluntary settlement.
- Unlike the litigation process, where communications are normally lawyer to lawyer, in a mediation you and the opposite party have an opportunity to explain your case to each other directly and/or through the mediator.
- A mediation is completely confidential. In addition, during the mediation you have the absolute right to instruct the mediator not to disclose certain facts, opinions or settlement positions to the opposite party. Therefore, subject to your lawyer’s advice, you should tell the mediator your side of the story and not withhold certain details you might believe are damaging to your case, because the mediator can best do his/her job if they are fully aware of all relevant facts.
- Mediators are independent and do not represent either side to the dispute. If a mediator appears to be critical of the merits of your position, you can be sure that they are taking the same tack with the opposite party. The mediator is simply doing their job in trying to convince each party of the wisdom of a settlement.
- Mediators appreciate and need the parties’ input and assistance to do their job effectively. If you and the opposite party have done business in the past or have another existing relationship that you expect to continue, there may be creative ways to settle the case that the mediator would not otherwise think of, so please share your thoughts with the mediator.
Kenneth A. Reich is an experienced lawyer as well as an experienced mediator. He is an appointed member of the Dispute Resolution Section Council of the MBA. He has taught a seminar in dispute resolution at Boston University School of Law for a number of years.