Mediation refers to one of several methods used to resolve legal disputes other than through formal court trial. Mediation and arbitration constitute methods of “alternative dispute resolution” (ADR). Arbitration is used as a substitute for trial, but mediation merely assists the parties in reaching their own resolution of a disputed matter. Instead of a judge or jury rendering a judgment or verdict, or an arbitrator rendering a binding decision, a “mediator” merely facilitates open discussion and tries to assist the parties in resolving their differences on their own. Mediation thus avoids the “win-lose” set-up of a trial or arbitration.
Those who go through formal mediation tend to achieve settlement through their own spirit of mutual compromise. For that reason, mediation may be particularly helpful or appropriate in situations where parties have an ongoing relationship (neighbors, business associates, divorcing parents of minor children, etc.) and do not want that relationship destroyed by the adversarial process of trial. In addition to being less adversarial than trial or arbitration, mediation tends to be less expensive, faster, and nonbinding.
Mediation also may be used as a pre-trial initiative to provide a way for litigating parties to gauge the relative strengths and weaknesses of their claims and defenses before they get to the point of trial. This does not mean that mediation is used as a practice trial; rather, it represents a joint effort in good faith to resolve the matter before it gets to trial. In this form of mediation, after parties consider all sides to the dispute, a recommendation for settlement is given to the parties for their consideration. If the parties are unwilling to compromise their respective positions, and no settlement of the dispute results, at least the mediation experience will have given them a better understanding of how the dispute may or may not play out in court.
