Mediations are often arranged as an attempt to settle lawsuits without the time and expense of going to trial. In some jurisdictions, specified matters must go to mediation before trial. In other cases, the court may order mediation, or the parties and their lawyers may agree to a mediation. In Arizona, before a personal injury case will be set for trial, the parties almost always will be required to participate in mediation or another form of alternative dispute resolution.
During a mediation, an independent person (called the “mediator”) will work with the parties to help them resolve their dispute. In some mediations, the opposing parties will be in separate rooms throughout the mediation process, and all communication will be done through the mediator. In other mediations, the mediator will conduct a short session with the parties together, and then the parties are taken into separate rooms for the duration of the mediation.
The mediator’s role is to work to understand each party’s position, help the party to develop a proposed solution, and then convey that offer to the other party. Often there are offers and counter-offers, and the mediator goes back and forth between the rooms where each party is waiting.
The mediator is usually bound to confidentiality with only limited exceptions. If you are at a mediation, the mediator will discuss nothing you tell him or her with the other party unless you specifically authorize the mediator to do so.
Mediators Are Not Arbitrators or Judges
Mediators will be interested in the strengths and weaknesses of each party’s case because such information is often very helpful in achieving a settlement. However, the mediator has no authority to decide the case. Instead, the mediator’s role is to help the parties craft a mutually-agreeable solution.
What Happens if a Mediation is Not Successful in Reaching a Resolution?
Not all mediations result in a resolution. When a resolution is not reached, the litigation will continue. This does not mean that a resolution is not possible prior to trial. Often cases are settled through additional negotiation, and occasionally, through another mediation.