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What is “Mediation”?
Mediation is the process by which parties to a legal dispute employ a third party, called a “mediator”, to assist in resolving the dispute. The mediator is an unbiased and disinterested third party. She generally has undergone special training in dispute resolution and possesses in-depth knowledge of the subject matter of the dispute. In most instances, a mediator is a licensed attorney who has mediator training. This is important, as the mediator should understand the legal principles that will apply to the dispute and be able to explain those legal principles to the parties. The mediator can honestly communicate with each party the process and possible results if the parties cannot resolve the dispute and decide to move forward with litigation. Mutual understanding of the parties is import in resolution of the dispute.
- Note: The mediator is not a decision maker; rather, she is a facilitator helping to bring the parties together toward a negotiated settlement. As such, she cannot deliver a binding decision on a matter. The parties must ultimately agree or refuse to settle the dispute.
Malizia, Deborah A. and Jameson, Jessica Katz, Hidden in Plain View: The Impact of Mediation on the Mediator and Implications for Conflict Resolution Education (January 24, 2018). Conflict Resolution Quarterly. 2018; 35: 301–318. DOI/10.1002/crq.21212. Available at SSRN: https://ssrn.com/abstract=3134800
Corbett, Justin and Corbett, Wendy, The State of Community Mediation 2011 (March 12, 2012). National Association for Community Mediation (NAFCM), 2011. Available at SSRN: https://ssrn.com/abstract=2030467
McAdoo, Barbara, A Mediation Tune Up for the State Court Appellate Machine (2010). Journal of Dispute Resolution, Vol. 2010, No. 2, p. 327, 2010. Available at SSRN: https://ssrn.com/abstract=1910899
Wissler, Roselle, The Role of Antecedent and Procedural Characteristics in Mediation: A Review of the Research (2006). THE BLACKWELL HANDBOOK OF MEDIATION AND CONFLICT RESOLUTION: BRIDGING THEORY, RESEARCH, AND PRACTICE, p. 129, Blackwell, 2006. Available at SSRN: https://ssrn.com/abstract=1725439