Mediation is an informal process through which disputing parties can resolve their differences without the expense, stress, and risk of protracted litigation and trial. Mediation vests the parties with control over the outcome of their case, and allows the parties to create their own remedies, whether or not those remedies would or could be ordered by a court of law. Mediation is a creative, compromising endeavor that can save parties tens or hundreds of thousands of dollars, give them control over their lives, and help them to achieve peace and a quality of life that is usually elusive during litigation and trial.
A good mediator is strictly neutral, free of judgment, and seeks primarily to understand all parties’ positions, feelings, and goals for the future. A mediator should be forward-looking, and seeks compromise and both conventional and unconventional solutions specific to the dispute and the parties’ lives, as opposed to reviewing evidence of past behavior and judging the parties’ prior actions within the confines of established procedures and rules – the focus of our adversarial judicial system. Mediation is quite unstructured compared to litigation and trial; the mediator and the parties have enormous control over the dispute and how best to resolve it. Mediation is to litigation what kindness is to anger – a touch of softness in a difficult situation can change the entire dynamic and create a shift in perspective that can lead to understanding and validation of hurt, which in turn can lead to dissolution of anger, resentment, and conflict. Litigation and trial tend to do just the opposite – to pit the parties against one another in a system designed to be adversarial in nature.
Mediation is a confidential proceeding. Confidentiality allows the parties to express themselves fully with the mediator and to help her to understand the nuances of the dispute, without the risk that opposing parties will use the confidential information against them in the future in the event that a settlement is not reached right away.
For mediation to be successful, all parties must desire to resolve the conflict, to forgive others’ transgressions, and to move on to a more peaceful and happy life. Parties often believe that they want to resolve a dispute, but unconscious barriers can block peaceful resolution of disputes. Professor Sacks has studied and published academic articles concerning unconscious psychological processes and can help disputing parties to understand and get past the psychological barriers to dispute resolution.
Even when parties do not settle during the mediation, mediation has been shown to increase the chances of settlement before trial. Many cases settle post-mediation in large part because of the parties’ enhanced understanding of each other party’s position and feelings as a result of the mediation process.