Mediation is one form of alternative dispute resolution (ADR) that allows parties to seek a resolution for their conflict without the time, expense, and uncertainty of a court trial. Parties work with a mediator, who is a neutral third party. Usually, mediators have received some training in negotiation or their professional background provides that practical experience.
Unlike a judge, a mediator does not decide who wins; rather, a mediator facilitates communication between the parties and helps identify issues and solutions. The goal is for parties to reach an acceptable agreement. In evaluative mediation (used in the Early Neutral Evaluation process), the mediator will give an opinion as to what they think a court is likely to decide, based upon their professional experience. A mediator cannot give either party legal advice (even if the mediator is also a lawyer) and cannot draft legal documents.
Mediation can be an appealing option. Mediation is less adversarial than the tradition litigation process. This might be important when the relationship between the parties has to continue in the future, such as between a divorcing couple with children. Mediation can also cost less than litigation. Mediation can be a successful way to reach a settlement. Many courts expect, and often require, parties to attempt to resolve their conflicts before coming to court, either through mediation or another form of ADR.
While mediation can be a great option in many cases, it is not the best option in all cases. Mediation is not appropriate for matters involving domestic violence. There is a common misconception that using a mediator is the best way for parties with an agreement to have a cheap and amicable divorce when in reality going to a mediator when the parties already have a complete agreement on matters is a waste of time and money.
