Mediation to Resolve Disputes
Mediation is an effective approach to resolving disputes. It is defined by the Massachusetts Supreme Judicial Court Uniform Rules on Dispute Resolution as
“a voluntary, confidential process in which a neutral is invited or accepted by disputing parties to assist them in identifying and discussing issues of mutual concern, exploring various solutions, and developing a settlement mutually acceptable to the disputing parties.”
The parties must agree to mediate their dispute, agree upon a mediator and determine the parameters for the mediation according to their needs. The mediator’s role is never to decide the matter, but that of a facilitator, to help the parties reach a settlement. Mediation is a non-binding process. It can be done by parties themselves without lawyers or with lawyers representing the parties and involved in the mediation. There is no third party decision maker in mediation, like a judge, a jury or an arbitrator.
As defined above, mediation is a private and confidential process. There is no filing with the courts; no complaint or any other document needs to be filed to initiate mediation. What is needed is the intention and desire of the parties to resolve their dispute, the willingness of the parties to work together with the mediator and their good faith participation in the process. Mediation is highly successful at achieving resolution, but if it does not, the parties may then try some other means of dispute resolution, including collaborative law, arbitration or litigation. Mediation and arbitration are two very different types of ADR processes.
Mediators are typically hired jointly by the parties involved in the dispute. The fees and costs of the mediator are shared equally by the parties involved, unless some other payment arrangement is agreed to by the parties. If the parties are represented in the mediation by their lawyers, the parties are responsible for the fees and costs of their respective lawyers.
Like in the collaborative processes, the clients are sovereign in mediation; they make the final decisions about how they will resolve their dispute, which are then reduced to a writing called a settlement agreement that includes the terms agreed to in their resolution.