Mediation In Depth

Mediation In Depth

Mediation is a form of Alternative Dispute Resolution (ADR) that involves an impartial third party to help settle a dispute.  The purpose of mediation is to help the parties reach an agreement on a dispute by improving communication, finding common ground and recommendations from a third party mediator if necessary.  Any event where the third party mediator actively makes recommendations is called conciliation.  Conciliation may involve an informed individual who can provide a framework of solving the dispute, such as a lawyer.

What are other forms of mediation?

Counseling is a form of mediation that focuses on the parties rather than on an agreement.  The third party mediator seeks to resolve disputes through analysis of behavior and individual perspectives of the other party.  For example, marriage counseling does not focus on reaching an agreement that makes the marriage a functional relationship, but rather patterns of behaviors and disputes that have deteriorated the relationship.  The role of the counselor here is to provide a supportive framework for the couple to resolve their dispute as well as over advice to resolve future issues.  

Why is mediation preferable to litigation?

All court cases happen in public, which is a problem for parties that value privacy.  Mediation also speeds the resolution of cases, which keeps the costs down for the parties involved as drawn out legal cases tend to be expensive due to legal fees.  Mediation allows the dispute to be resolved amicably, while litigation has a significantly lower possibility of conciliation at the end of the legal action.  This ADR may also help to improve the workplace by increasing communication between disaffected parties and getting to the root of grievances in the workplace.  Litigation may simply exacerbate these tensions of enforce a settlement that damaged one or both parties.  Additionally, litigation tends to force the involved parties to become more entrenched in their positions, with less willingness to compromise and a higher degree of dissatisfaction with the legal process.

How does the mediation process work?

The US Equal Employment Opportunity Commission describes their mediation process as an alternative to a formal investigation when a charge is filed against an employer.  The EEOC first contacts both parties to offer mediation.  If both parties accept mediation, then there will be an approximately 3 – 4 hour sessions with a neutral mediator.  The mediators function is to remain impartial and facilitate the process so that the sides may come to a settlement on their own terms.  The parties may choose to involve attorneys in the mediation process, although the role they play is at the discretion of the mediator.  The mediation, when offered by the EEOC is free and gives the employer the ability to settle with the employee without a formal investigation process that would have been otherwise initiated by the EEOC if they found merit in the complaint.  Unlike most forms of mediation however, the EEOC settlement will be enforceable in court if either side does not comply with the resolution.


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