About Mediation

Common Questions

The parties already tried to resolve this themselves. (If they knew how to communicate, they wouldn't be in this situation.) What makes you think mediation will work?

  • A skilled mediator is a "doctor" of communication, identifying where people's communication with each other is not functioning well and what would support healthy communication.
  • Communication is not the same thing as negotiation: When parties are "communicating" with each other, they are not using the structure of a mediation process that guides them to negotiating solutions.
  • A mediator can "reframe" parties' interests, positions and concerns, which frequently leads to shifts in negotiation strategy that can result in settlement.
  • A mediator can be an "agent of reality," a third party who can ask unbiased questions which might challenge parties' assumptions and perceptions of the situation and each other.
  • If parties choose not to resolve their issues in mediation, they will likely be putting the decision-making in the hands of somebody else, who also may not have the ability to negotiate a mutually acceptable outcome.

Does mediation require that parties be calm, reasonable, or rational?

When people are making decisions that affect their relationships, their economic security, and their dreams for the future, there will be intense emotions present, whether or not they are expressed openly. The mediator's role is to guide people through a process of making decisions together amidst the full range of thoughts and feelings. Mediation doesn't require that people are peaceful and cooperative, only that they are there voluntarily, and determined to take care of the business between them.

Is mediation appropriate when there is an imbalance of power, or one party is not comfortable negotiating for themselves?

People sometimes fear that mediation would allow for one party to take advantage of another. Yet, mediation is one of the best ways people can protect themselves from being taken advantage of, because both parties retain decision-making power. An experienced mediator structures the process so that interests of each party are equally valued. Additionally, the mediator supports each party in:
  • making fully informed decisions
  • obtaining perspective and advice they need from other professionals, including attorneys, accountants, psychologists, etc.
  • having adequate time for deliberation of proposals, and
  • carefully considering proposals and extensively reviewing agreements before they are signed at the end of the process
  • discontinuing or modifying the process at any time if they are concerned that it's not in their best interests

Are agreements reached in mediation legally binding?

Mediation agreements may be written up as an informal working agreement, or filed with the court as a legal contract. When agreements are attached to a court order, such as a divorce decree, they are legally binding and subject to approval by the judge. An example of these steps is shown at Divorce Time Frame.

Can parties mediate while they have legal suits or court proceedings?

The vast majority of cases filed in the court system are negotiated and settled by attorneys without the parties going to court. If the parties in a legal proceeding choose to negotiate a mediated agreement together, it can serve as the basis for ending any legal action. Each party in a dispute of this kind can best understand the legal implications of their discussion and proposed agreement by consulting with their own attorney, provided the attorneys both understand and support the process of mediation. For more info on attorney selection see Find the Right Attorney.

What happens if an agreement is not reached in mediation?

If participants are unable to reach an agreement in mediation, they have a few choices:

  1. They work out an agreement for a temporary basis, during which they can take a "time-out" from the dispute. When they later return to mediation, often their perspective has shifted and they are able to come to agreement.
  2. They agree to have their agreement reflect the advice of an "expert" on the issue they are discussing (such as a tax attorney, doctor or child psychologist) or a neutral arbitrator that will hear their positions and make a binding judgment. The parties can also use mediation to develop and agree on the process for identifying such a person.
  3. They might still be able to resolve some of the issues; even partial agreements can help participants narrow the issues and limit the time and expense of going to court.
  4. The parties can still use whatever method they might have used if they hadn't tried mediation. Since all mediation discussions are confidential, parties are no worse off than when they started. They would also have a deeper understanding the issues and their options.