Frequently asked questions about mediation.

The dispute ordinarily continues. If a lawsuit is pending, discovery, motions, hearings, and trial proceed according to the court schedule. If mediation occurred before suit, the parties generally retain whatever legal remedies remain available. Even unsuccessful mediation can narrow issues, improve information exchange, or create a basis for later settlement.

The mediator should disclose a relationship that could reasonably affect, or appear to affect, impartiality. The parties can then evaluate whether to proceed, subject to applicable ethics rules.

Parties often tell the mediator about settlement priorities, business concerns, risk tolerance, internal authority, non-monetary interests, and weaknesses they do not want shared. The mediator should explain what information will remain confidential within a caucus and what may be communicated to the other side.

A caucus is a private meeting between the mediator and one side. It allows candid discussion of legal risk, settlement priorities, weaknesses, emotional concerns, and possible offers. A mediator should explain whether information disclosed in caucus will remain confidential from the other side unless permission is given to share it.

A mediation statement is a written submission that gives the mediator background on the dispute, important facts, legal issues, damages, settlement history, and obstacles to resolution. Some briefs are exchanged; others are confidential submissions to the mediator.

A conflict of interest exists when a relationship, financial interest, prior involvement, or other circumstance could reasonably call the mediator's impartiality into question. Mediators should disclose material relationships before accepting or continuing an assignment.

Evaluative mediation uses a more active form of reality testing. The mediator may discuss strengths and weaknesses, litigation risks, likely outcomes, or settlement ranges, particularly in sophisticated civil litigation. The parties still decide whether to settle.

Facilitative mediation focuses on helping the parties communicate, identify interests, generate options, and reach their own decision. The mediator usually asks questions and structures the discussion rather than offering a strong prediction of how a judge or jury would rule.

Mediation is a structured negotiation in which a neutral third person helps people or organizations in a dispute communicate, identify issues, explore options, and try to reach a voluntary agreement. The mediator normally does not decide who is right, enter a judgment, or impose a settlement. The parties retain decision-making authority. Mediation may be used before suit, during litigation, on appeal, or in disputes that never enter court.

Mediation is a consensual settlement process in which the parties decide whether to settle and on what terms. Arbitration is an adjudicative process in which an arbitrator hears the parties' positions and evidence and then issues a decision. Arbitration may be binding or nonbinding depending on the agreement, statute, or court rule.

Transformative mediation emphasizes party empowerment and recognition. Rather than focusing only on settlement, the mediator helps participants make clearer choices and better understand each other's perspective. Settlement may occur, but improved interaction is also an important goal.

Mediation can be useful at many stages. Early mediation may reduce legal fees and preserve relationships, while later mediation may be more productive after the parties have exchanged key documents, taken depositions, or obtained expert opinions. Some disputes benefit from more than one mediation session.

Typical participants include the parties, their lawyers, and sometimes insurance representatives or corporate decision-makers. Experts, interpreters, family members, support persons, or other stakeholders may participate when permitted.

In private mediation, the parties usually agree on a mediator. Attorneys often suggest candidates based on subject-matter knowledge, mediation style, reputation, experience, location, cost, and availability. If the parties cannot agree in a court-referred case, the court or ADR program may appoint someone.

The parties commonly split the mediator's fee, but they can agree on another allocation. One party may pay all or most of the fee, particularly if a contract or settlement proposal so provides. Payment does not make the mediator the representative of the paying party.