What is Mediation? What is it Not?

When I talk to folks about what mediation is, sometimes is easiest to explain what it is NOT first.  I’m going to compare mediation to other forms of alternative dispute resolution.

Litigation –

1. Although mediation can be used in disputes between parties who are involved in litigation, the mediator is not acting like a judge, making a decision.
2. Unlike trial, there is no “testimony” that is heard or rules of evidence.
3. Court decisions can be “appealed”, unlike mediated agreements.
4. Litigation is not a voluntary process.
5. Litigation can be an expensive process from the standpoint of attorneys’ fees and experts, if applicable.
6. In the family law context, judges can make determinations on many (but not all) issues involving a divorce. For example, courts will not decide issues of pet visitation or will get involved in enforcing certain provisions that may be important to the parties.

Arbitration –

1. Arbitration and mediation are oftentimes confused. An arbitrator is more akin to a judge making a final determination.
2. The parties can decide whether the arbitration is binding or
3. Like a judge, an arbitrator will hear testimony and review evidence. In a sense, arbitration is a more casual form of litigation with relaxed rules of evidence.
4. Unless the contract in dispute requires binding arbitration, arbitration is still a voluntary process.
5. Arbitration decisions can be appealed and challenged in certain situations.
6. Oftentimes parties will agree to use an arbitration organization such as the American Arbitration Association; however, the parties may use private arbitrators.
7. Parties can choose whether to use a 1 party or 3 party arbitration panel of people who may or may not be lawyers or have specialized skillsets according to the practice areas.
8. Arbitration is viewed as an expensive form of Alternative Dispute Resolution (“ADR”).
9. In the family law context, families cannot arbitrate child custody and visitation (i.e., the allocation of parental responsibilities and parenting time).

Early Neutral Evaluation –

1. This is a newer form of ADR with growing popularity in some geographic areas, depending on the type of dispute. You will see this more with matrimonial or commercial disputes.
2. A Neutral Evaluator is usually a licensed attorney with several years of experience (e.g., 10+ years of experience or a retired judge) that is paid hourly much like an arbitrator.
3. Like arbitration, Early Neutral Evaluation or “Neutral Evaluation”, focuses more on the economic issues with a dispute. In the family law context, it is unusual for a Neutral Evaluator to give opinions on custody and visitation.
4. Like an arbitrator, after reviewing the facts and submissions from each side, the Neutral Evaluator will make a non-binding decision on how he or she feels a jurist will rule in a particular situation.
5. This can be an effective, but not inexpensive tool, to break an impasse by getting a decision from a neutral third party. The parties may agree in writing to make this decision binding; however, the parties usually take this decision under advisement in settlement negotiations.

In the next blog, I will focus more on what mediation IS.  I’m a huge fan of mediation.  It’s an effective way to resolve disputes.  I’m trained as a mediator for commercial disputes and family law mediation.