“Mediation is a voluntary, confidential process in which a neutral person (a mediator) assists disputing parties in identifying and discussing issues of concern, exploring various solutions and developing a settlement that is mutually acceptable to them.”
From A Guide to Court-Connected Alternative Dispute Resolution Services
Prepared by the Mass. SJC/ Trial Court Standing Committee on Dispute Resolution in cooperation with the SJC Public Information Office.
Whether a mediation involves dozens of lawyers, insurers and principals mired in complex, multi-party commercial litigation, or a couple of neighbors in a dispute about the use of a shared driveway, there are some features which are common to most, if not all, cases. Some of those key, common elements are the following:
Mediation is a voluntary process – Both the decision to attend mediation, and the decision to resolve the conflict remain in the control of the parties. While resolution of the dispute is, of course, the goal of mediation, a settlement agreement will be written up only with the consent of the parties.
The mediation process is confidential, and this plays out in two ways: During the mediation itself, the parties may instruct the mediator to not disclose certain information to the other side, and the mediator will keep confidential all such information shared during private communications. The confidentiality of mediations extends beyond the mediation session itself. In Massachusetts, there is a statute (G.L. ch. 233 §23C) which explicitly protects the confidentiality of the mediation process. In part, it prohibits the mediator or the parties from disclosing any confidential material in any subsequent legal action. The text of that statute is as follows:
Section 23C. All memoranda, and other work product prepared by a mediator and a mediator’s case files shall be confidential and not subject to disclosure in any judicial or administrative proceeding involving any of the parties to any mediation to which such materials apply. Any communication made in the course of and relating to the subject matter of any mediation and which is made in the presence of such mediator by any participant, mediator or other person shall be a confidential communication and not subject to disclosure in any judicial or administrative proceeding; provided, however, that the provisions of this section shall not apply to the mediation of labor disputes.
The mediator is neutral and impartial, and has no stake in the terms of the settlement. The mediator’s role is to facilitate a fair process, enabling the parties to fully consider their best options for settling the dispute. The mediator is not a decision maker – the parties to the mediation, usually with the advice of counsel, retain control of the outcome of the mediation. Although many mediators are, in fact, lawyers, for the purposes of the mediation, the mediator does not provide legal advice, and does not act as an advocate for either side.
Resolution involves compromise; sometimes there are creative solutions, but mediated settlements most often involve each side being willing to give up on certain things that they may genuinely believe themselves entitled to. The mediation process works best when participants are prepared to be flexible and creative. A good mediated outcome is one in which the participants have thoroughly considered the pros and cons of settlement, and weighed the proposed settlement against the uncertainty and the costs of litigation.