How Mediation Works

In mediation, an impartial person (mediator) helps people reach agreements they can all accept. The mediator helps everyone talk about the issues in ways that can make it easier to settle the dispute. Mediators do not make decisions. Agreements can only be reached if everyone agrees.

In mediation, a trained person, called a mediator, meets with you and the other side in a private meeting. The discussion is confidential. The mediator has no power and does not "decide" anything. The mediator helps the parties negotiate a written settlement agreement. A settlement agreement can be enforced by the court. Mediation is private, faster and less expensive than going to trial.

• Choosing a mediator: Disputants can get a current list of mediators from The Congress of Neutrals, through this website, from their county ADR programs office, or through on-line searches.

• Mediator style: Mediators help parties focus on important issues, and often ask for ideas about settling the conflict. Some mediators will ask the parties what they think might happen if the case went to trial. Others help the parties decide what solution they want for themselves.

• Mediators are neutral. Mediators are trained to help the parties settle the dispute, but they are neutral. They cannot and will not take sides. A mediator cannot and will not give legal advice. The decision to settle is up to the parties to the dispute.

• Attorneys may attend. If you have an attorney, your attorney may attend the mediation meeting with you. The attorney (and each person present) must also sign the confidentiality agreement. Even if an attorney is present, the parties to the dispute are encouraged to speak up, say what they want to say, and to be active. Usually, in mediation, the focus is more on the parties and what they want than on the attorneys.

• Preparation for mediation and trial. Your preparation for trial is helpful in your preparation for mediation and ADR. This is because the information and documents you gather and organize can be used during the mediation. The plaintiff can show the defendant the reasons why there is liability. The plaintiff can be prepared to give details of the damages. The defendant can show during mediation why there is no liability, or tell the plaintiff why the damages are incorrect.

• Mediation summary: Before mediation, each party must write a summary (no more than 5 pages) explaining the dispute. When you have finished your mediation summary, you must send this to the other parties and the mediator at least 5 court days before the first mediation session.

• Attendance: Unless excused by the assigned judge, ALL parties must attend the mediation in person.

• Confidentiality: Mediation gives you an opportunity to talk openly and explore a full range of ideas for resolving your conflict. To encourage this, the information prepared for or discussed in the mediation cannot be used as evidence in court. The law prohibits any person who goes to the mediation meeting from repeating what was said in the mediation. (Evidence Code 1119, 1121). If someone tries to do so, the other side can object. The judge will not listen to such confidential information. The mediator cannot be forced to testify about what happened or what was said in the mediation meeting. The mediator will only report to the court whether or not an agreement was reached.

• If the dispute is settled: If the parties decide to settle, the terms of settlement are written up in a settlement agreement. Usually, the settlement agreement states that if there is a breach of the mediated agreement, the parties may apply to the court in a motion to enforce the settlement agreement. It is the policy of the courts of California to peacefully resolve disputes, and the judge will almost always enforce a settlement agreement.

• Is mediation "binding?" A settlement agreement made in writing and signed by the parties (or in the courtroom, Evidence Code 1118) is binding. Unlike an arbitrator, the mediator does not decide anything for the parties, and the mediator does not act like a judge. Nothing in mediation is binding before a settlement agreement is made, except that the things said or shared are confidential.

• If the dispute is not settled: The parties continue with their case at court and prepare for trial.

• Fees: If you do not have an attorney in your limited jurisdiction civil case, in certain cases the judge may send you to a mediator. Such mediation is free. If the parties are referred to the court ADR program, mediators from the court’s current list, who are informed that it is a court referred case, and are willing to accept the case donate the first half hour spent scheduling or preparing for mediation. They also donate the first two hours of mediation. If the parties need more time, they must pay that person’s regular fees. Some mediators ask for a deposit before mediation starts. Mediators who do this must give back whatever is left after counting the time he or she spent preparing for or doing the mediation. A party whose court fees have been waived (cancelled) may ask if their mediation fees or deposit can be waived.

History of Mediation

The idea of a mediator between the estranged is ancient.(1) Tribal societies deem respected elders, village headmen, priestesses, oracles, councils, heads of families, warrior chieftans, and so forth as having authority to resolve local disputes.(2) In some Muslim societies, the local marketplaces have a supervisor (Arabic: muhtasib) who has authority to monitor business transactions in the market. His authority (apparently also a gender role) extends to preventing cruelty to animals.

The Eskimo traditionally used song contests, boxing, head butting and wrestling for solving any dispute except one involving homicide. The nith songs were used to work off grudges and disputes of all kinds, and an East Greenlander "may seek satisfaction for the murder of a relative through a song contest if he is physically too weak to gain his end, or if he is so skilled in singing as to feel certain of his victory."(3)

Conciliation boards began in Norway in 1775. These allowed for the expeditious resolution of disputes in an economical manner. Today, conciliation boards consist of three selected lay people. Such boards handle a large volume of cases, most involving cases of debt. The law requires that before a summons is issued by a municipal court, the case must first be brought before a conciliation board, although there are exceptions where both parties have had assistance of legal counsel, and lawyers for both sides agree that conciliation will serve no purpose. In 1994, the conciliation boards received a total of 98,793 cases.(4)

Example: The Ombuds Officer. The ombudsman is a person appointed to investigate and report on citizen complaints. The first such officer was appointed in Sweden (Swedish - "commissioner") in 1809-10 with wide power of enquiry. This office adopted in Finland (1919), Denmark (1954) and Norway (1962), and ombuds workers are found in New Zealand, the United Kingdom, Germany and the United States. In Japan, similar services are provided by representatives of the Administrative Management Agency.

Typically, the ombudsperson provides legal aid in the administrative sphere. A civil ombudsperson may receive written complaints or may, of his or her own volition, choose to look into a problem or dispute. In many cases, the ombuds rejects the complaint as the citizen has failed to sufficiently show an abuse. The ombudsperson may ask for clarification or help the complainant to state the grievance more clearly. If the subject matter of the complaint is beyond the ombudsperson’s jurisdiction (or action territory), the ombuds may direct that person as to where to lodge the complaint. Some corporations which provide health or elder care sometimes hire ombudspersons to help find or remediate abuses.

Simple, informal courts, where ordinary people can settle their affairs without expense, delay, legal technicality or contentiousness, have been a subject of discussion in America since colonial times. This theme runs through social and political movements in the early nineteenth century in the wake of the American and French revolutions. The efforts in the 1840s to codify and restate the law, to simplify legal procedure, and to open the practice of law to Everyman was largely a result of the Code Napoleon and the primary focus on the rights of individuals.(5)

Lawyerless dispute resolution procedures were suggested in England in 1828 by Henry Brougham as a means to shorten litigation time and reduce expense:

An extension and improvement of arbitration is one of the remedies I have ventured to suggest, at least for further discussion. If arbitrators were publicly appointed, before whom parties themselves might go in the first instance, state their grounds of contention, and hear the calm opinion of able and judicious men upon their own statements, their anger would often be cooled and their confidence abated, so as to do each other justice without any expense and delay. Such a tribunal exists in France, under the name of Cour de Conciliation; in Denmark it exists; and for certain mercantile causes in Holland also.(6)

Conciliation and the Establishment of Specialized Tribunals.In Victorian England, conciliation was developed as method to settle disputes between workers and management. The Conciliation Act of 1896 established bodies of persons appointed for the purpose of bringing parties together, to influence them to make a settlement, but without the ability to render a decision or award.