“Mediation” is generally described by the courts and academics as a process where a neutral person, who has no decision-making authority, facilitates communications among the disputing parties, with the primary goal of helping them find a mutually acceptable resolution to their dispute. In that regard, the final determination of any settlement is defined by the parties, and not by any third party.
Mediation can be commenced either by the order of a court, by the terms of a pre-existing agreement, or by the voluntary and mutual agreement of the disputing parties.
The opposite of mediation is mandatory arbitration, where the disputing parties turn the ultimate determination of their dispute over to a neutral person or panel, that hears the evidence presented by the parties, and reaches a final conclusion. In this form, the arbitrator or panel acts as the judge and the jury, and the result is not by the self-determination of the parties.
Mediation can be engaged in either before or after the filing of a petition or complaint in court.
Generally in both situations, to some degree, the parties can define the procedure, when and where the mediation will take place, the submission of written mediation statements and making opening statements, if any, and the length of the mediation session. In almost every case, the mediator’s fee and the costs of the mediation are shared equally by the parties.
Mediation is not governed by the formal procedural rules and rules of evidence of either the federal or state courts, unless the parties decide otherwise. The mediator is free to evaluate the credibility and weight of the evidence using his or her own judgment, and help the parties evaluate their respective positions based on his or her observations regarding the same.
The commencement of a voluntary mediation is generally started by the agreement of the parties and the joint selection of a mediator. If the parties cannot agree on the designation of a mediator, they can formulate their own selection process, usually by each designating the names of several mediators, and then using a process of elimination, called striking. Once a mediator is selected, the parties sign a mediation agreement and schedule a time and place for the mediation to occur.
The Kansas U.S. District Court comments: “A mediator may employ traditional facilitative strategies (aimed at solutions to problems underlying the litigation), evaluative strategies (designed to present the strengths and weaknesses of the cases, or its relative value), or a combination of both approaches…” A mediator may meet with the parties jointly and separately, to help them identify their underlying interests, improve communication, and generate settlement options. (see Kansas U.S. District Court Rule 16.3).