The Five W's of Mediation

During the course of most lawsuits and arbitration proceedings, and sometimes, even prior to the start of a lawsuit or arbitration proceeding, parties to a dispute may participate in a mediation.   Here's a quick summary of the mediation process:

Who - Who is the mediator?   The mediator is a neutral third party and typically, an experienced lawyer.   The mediator's job is to assist the parties in reaching a settlement of their dispute. A settlement usually involves the payment of money from one party to another in exchange for the final dismissal of all claims against the paying party.   A settlement puts the parties in the driver's seat in terms of dictating the outcome of the dispute, instead of allowing a judge, arbitrators or a jury decide the outcome.

What - What is mediation?  Mediation is a confidential and private meeting involving the parties, the parties' lawyers and the mediator during which time the parties attempt to negotiate a settlement of their dispute.   Most mediations occur over half a day or an entire day. In complex matters, mediations may take multiple days.   Generally, at the start of the mediation, all participants meet together in the same room.   The mediator will provide a general outline of the process.  Sometimes, the parties' attorneys will present the legal positions and views of the parties.  During the vast majority of the mediation, however, the parties will split up into separate rooms  (known as a caucus), so that the mediator can speak to each party privately about their respective views of the dispute.   Using various types of negotiation and resolution strategies, the mediator then engages in a back-and-forth discussion with the parties concerning the amount of money that will be paid to resolve the dispute. 

Where -  Where will the mediation take place?  The mediation may take place in any office environment, so long as the facilities provide access to multiple, private rooms.   Most of the time, the mediation will occur in the office of the mediator or the parties' lawyers .  

When -  When will the mediation occur?   The parties and their lawyers may decide to mediate the dispute before or after a lawsuit or arbitration proceeding is filed.  If the dispute is mediated after a lawsuit or arbitration is filed, the timing may be dictated by the exchange of information between the parties, certain rulings prior to trial or a final arbitration hearing, or court order.   When the timing is right, the mediation will be scheduled at a mutually convenient time and place by the parties, the parties' lawyers and the mediator.  

Why - Why should the parties and the parties' lawyers participate in mediation?  Most courts require the parties to participate in a mediation after a lawsuit is filed.  In other words, the parties and their lawyers will participate in a mediation because there is a court order requiring them to do so.   But more importantly, the main reason why parties and the parties' lawyers should participate in mediation and try to settle a dispute is a simple one:  uncertainty.  The parties' lawyers will use their legal knowledge and experience to evaluate the strengths and weaknesses of a particular case in light of the applicable facts and law.   The parties' lawyers will also do their best to predict possible outcomes if the case moves forward to trial or a final arbitration hearing.   However, the parties and the parties' lawyers do not decide the outcome of a dispute.   If a case is not settled, a judge, arbitrator or jury will decide the outcome and as most experienced lawyers will advise, the decision makers do not always evaluate and view the facts and law in the same way as the parties and their lawyers, which may lead to unpredictable (and even legally unsound) results for all involved.   From beginning to end (i.e., after trial and all appeal options are exhausted), participating in a lawsuit or arbitration proceeding often requires a considerable amount of time and expense.   The mediation process provides a vehicle for the parties and their lawyers to negotiate a final and certain settlement based on probable and possible legal outcomes for a given dispute. 

Joel Ewusiak has participated in numerous mediations during the course of his career.   For more information concerning the mediation process or assistance with a mediation, please contact Joel at