Mediation is a process during which an impartial, neutral person, the Mediator, facilitates communication between the parties in a dispute in an effort to achieve reconciliation, settlement, or understanding among them. The mediator may suggest ways of resolving the dispute but may not impose his or her own judgment on the issues.
The mediator facilitates the communication process, and is not an advocate, judge, jury, counselor, or therapist. The mediator does not give legal advice, solve the dispute, express an opinion on who is right or wrong, or make decisions for the parties. The mediator will help the parties to generate possible solutions and to choose a solution acceptable to each of them. At times, the mediator may meet separately with the participants during mediation to further the communication process.
Parties commit to participate in the mediation proceedings in good faith with the intention to settle, if at all possible. The parties must be sincerely interested in resolving their differences, have a certain trust in the mediation process, and be willing to talk openly and honestly about their concerns and issues. Mediation is most effective when participants listen and are respectful of the mediation process. The parties understand that the Mediator will not and cannot impose a settlement in their case and agree that they are responsible for negotiating a settlement acceptable to them.
There are several steps included in the mediation process: an opportunity for all parties to be heard, identification of the issues to be resolved in the mediation, a generation of alternatives for resolution, and, if parties desire, the writing of an agreement.
The mediation process is confidential. Anything said during the process should remain in the room and should not be used by either party for any reason outside of the mediation room. The terms of any agreement are shared only with the parties themselves and the court system, if applicable. Confidential information disclosed to a Mediator by the parties in the course of the mediation shall not be divulged by the Mediator unless the Mediator is required by law to make disclosure. Similarly, all records, reports or other documents received by a Mediator while serving in that capacity shall be confidential. The Mediator shall not be requested or compelled to produce or divulge such records or to testify in regard to the mediation in any adversary proceeding or judicial forum.
The Settlement Agreement.
As stated above, the mediator does not give legal advice. Parties are advised to have received legal advice prior to coming to the mediation. Although the mediation process is not binding to the parties, any settlement agreement executed by the parties is a legally binding document. Parties are therefore advised to have any agreement independently reviewed by their own attorneys before executing it in final form. If a party does not wish to have their agreement reviewed by an attorney, they are not required to do so, but parties understand and agree that the Mediator is not acting as an advocate or legal advisor.