The Mediation Process

The mediation process is a voluntary, without prejudice, good faith process intended to assist the parties in resolving disputes between themselves.

The mediation process belongs to the parties, not the mediator.  The process itself should have some basic structure but should also remain flexible and be able to adapt to the needs of the parties, that can themselves change during the process.

The “process” begins before the day of the mediation as the parties will be asked to sign a mediation agreement and provide brief written submissions outlining their respective positions.  The parties will also be asked what they would like the process to involve, recognizing that this can be a moving target as the process itself unfolds.  Right from the inception of the process the parties will be encouraged to be active participants, not just passive observers.

The actual mediation can take many different forms, ranging from in-person, to 100% virtual through such platforms as Zoom or Microsoft Teams, to a hybrid mediation where some parties attend in-person and others attend virtually.  Recent world events have required people to become more adept with technology and more comfortable navigating videoconferencing, which just adds to the flexibility of the mediation process.

The role of the mediator should also be flexible depending on the specific needs and dynamics of the parties.  In some cases, the parties may have been involved in negotiations already and have reached an impasse, while in other cases the mediation process may be the first opportunity the parties have had to address certain issues and discuss potential resolution.  As such the mediator may be called upon to assume a more facilitative role in some instances and a more evaluative role in others, or some combination of the two.

At its root, the mediation process belongs to the parties and its success depends on what the parties want to get out of it and what they are prepared to put into it.  In order to have success the parties should attend in good faith, approach negotiations on a principled basis, and be both open and flexible.  If the parties can approach the process with that mindset there is a strong likelihood that some form of compromise will be achieved.