JBC Mediation

Mediation is an alternative dispute resolution process in which a neutral 3rd-party - a mediator - helps two people negotiate a voluntary solution to their dispute.    

People choose to go through mediation because it works! According to the National Association of Certified Mediators, approximately 80% of mediations result in a Mediated Agreement.  

Mediation, arbitration, and litigation all involve the use of a third party to resolve conflict. One key feature of mediation is that the outcome is decided by the participants; the mediator does not render a decision about the dispute. By comparison, a third-party arbitrator or judge decides the outcome in arbitration and litigation, after listening to both sides through a hearing or court proceeding. Additionally, in mediation, the interests of both parties are often satisfied (win-win); while, in arbitration and litigation, one person typically gains from another's loss (win-lose). Other considerations in selecting a dispute resolution process are that mediation and arbitration are private, tend to be more expeditious, and are less costly than litigation. 

As mentioned above, there are no losers in mediation. The mediator does not make a decision or judgment about the dispute, and parties are in control of the outcome. The mediator seeks to find common ground among both parties' interests by asking open-ended questions and listening actively to each side in a private setting, making mediation much kinder and gentler than other dispute resolution processes. Mediation aims to preserve the relationship between the two parties. Even if the mediation does not end with a formal agreement, both parties benefit from learning about each other and finding new ways to communicate in the future. 

Mediation is a cooperative process designed to benefit both parties. In order for mediation to work, both parties must be willing to mediate, to listen to each other, to fully disclose all information related to the dispute, and to make concessions. Mediation can only work if both parties are present and genuinely interested in working together - even if they are in disagreement.

In a mediation session, the mediator facilitates a conversation between the parties to help guide them to a win-win agreement. After a free 30-minute initial consultation to determine whether mediation is the appropriate resolution process for the dispute, parties schedule the mediation and provide the mediator with pertinent information to prepare for the session. The mediator begins the mediation session by providing an overview of the process and ground rules, and the parties and mediator sign an Agreement to Mediate. Each party is then given time to share their side of the dispute and to listen to the other party's side. 

The mediator may meet separately with each party during the mediation, to better understand the parties' interests and positions. During these meetings (called caucuses), both parties offer concessions to help negotiate a mutually satisfactory agreement. If an agreement is made, the mediator will draft a Mediated Agreement that documents the terms of the agreement in the parties' own words. Parties then share this agreement with their respective lawyers before signing. Participants can schedule follow-up sessions with the mediator if questions arise or if both parties determine the Mediated Agreement needs revision. To preserve participants' confidentiality, all of the mediator's notes and documentation other than the Mediated Agreement are shredded immediately after the initial mediation concludes. 

The terms Mediated Agreement, Settlement Agreement, and Memorandum of Understanding (MOU) all refer to a written document that is signed by both parties at the end of the mediation that documents the terms of the agreement. 

Binding processes are those in which the participants have a legal or moral obligation to follow the terms of the agreement. While arbitration and litigation are binding processes, mediation is non-binding through the entire process until all participants in the dispute come to an agreement - which immediately becomes a verbal contract. Once the terms of the agreement are written, the agreement becomes a binding written contract. Verbal and written contracts can be legally enforced.  

Sometimes parties are unable to come to an agreement despite working through the mediation process. If this happens, the parties can decide to find another mediator or to pursue another form of dispute resolution, such as arbitration or litigation. Some parties opt to solve the issue on their own or to discontinue their attempt to find a joint resolution. Others purchase additional mediation sessions with their current mediator to continue working together to find an agreeable solution. 

All parties benefit from the mediation process by learning more about the other party's interests in the dispute and how to communicate more effectively. Attempting to solve the dispute in a private manner in which the parties can control the outcome - before seeking a more public, costly alternative - makes mediation a valuable and cost-effective investment regardless of the outcome. 

Typically, mediators charge $100 to $400 per hour, depending on the circumstances and the mediator's expertise and experience. Most mediations take a minimum of 4 hours. However, mediation can take longer if the case is complex or parties are unwilling to come to an agreement. While mediation requires an investment, it is much less costly than other alternative dispute resolution processes.  Additionally, the costs are typically split evenly between the parties, reducing the financial burden on any one participant.

There are several resources available online to learn more about the mediation process and what's in it for you.  Most states have their own laws, court rules, or orders regarding the role of mediators and the mediation process, which can often be found on your state's Department of Justice website.  Some states also offer resources and mediation services at a lower cost through dispute resolution centers (DRC). For example, Home | Resolution Washington | Dispute Resolution Washington State provides an excellent set of resources for locating a DRC in Washington State. They also offer a plethora of resources to learn more about mediation and dispute resolution. Other online sites, such as  Home - Mediate.com, can help you locate a mediator in your area. There are also several associations, scholarly articles, and websites devoted to mediation, which can be found by doing a simple Google search. Similarly, YouTube has a variety of videos explaining the mediation process. Many graduate programs, and professional affiliations are also available for those interested in becoming a mediator, arbitrator, negotiator, or other conflict resolution specialist.