If you’ve come to this website, chances are you are facing some kind of conflict. You may already be involved in a lawsuit, or you may just have a disagreement with a family member, neighbor, or business associate and you are looking for some help to resolve it. Sometimes courts will order disputing parties to mediate, and that leaves them asking, “What is mediation?”
Mediation is one of several forms of alternative dispute resolution. Alternative dispute resolution, sometimes called, “ADR,” is any means of dispute resolution other than a court trial. Mediation is one form of ADR, but ADR can also include unassisted negotiation, neutral evaluation, summary non-binding jury trial, and arbitration. The Utah Alternative Dispute Resolution Act defines mediation as, “a private forum in which one or more impartial persons facilitate communication between parties to a civil action to promote a mutually acceptable resolution or settlement.” Although the Act refers to parties to a civil action, mediation can also occur between persons in conflict before any civil action (a lawsuit) has been commenced.
One of the defining characteristics of mediation is the involvement of an impartial person to facilitate the parties’ efforts to resolve their dispute. This person is called a mediator. Many, but not all, mediators are attorneys, who use their years of experience in resolve disputes to facilitate communication and promote resolution. Mediators, whether they are attorneys or not, do not represent any of the parties involved in the conflict. A mediator can only do mediate matters in which he or she can remain impartial and evenhanded, demonstrating fairness to all parties involved in the conflict.
Mediation occurs in a private setting. The parties, often in consultation with their attorneys, get to choose the mediator. The mediation also occurs in a location on which the parties agree; sometimes at the mediator’s office, sometimes at the office of one of the parties or their lawyer, or at any other place at which the parties are comfortable, safe, and willing to discuss their conflict.
Mediators do not decide or resolve conflict for the parties. Mediation is founded on the principle of self-determination — the idea that people can and should make decisions about their own lives. In mediation, the parties speak for themselves, think for themselves, and decide for themselves. That doesn’t mean that the parties necessarily come away from mediation with everything they thought they wanted when the mediation started. Rather, through the process of mediation, the parties may come to realize that compromise is in their best interest, and so they choose a resolution that, although less than ideal, is better for them than the alternatives of continuing the conflict, or leaving it to the court to decide. Resolving conflict through mediation has the great advantage that the resolution is one that the parties choose.