Chapter 9

• Jurisdiction: United States

Chapter 9 Mediation and Negotiation

What Is Mediation?

Mediation is a form of alternative dispute resolution (ADR), meaning that it is an alternative to both the trial court option as well as arbitration. Some trial courts and some ADR entities require that mediation be undertaken as a first step to litigation or arbitration. They do so because mediation can proceed quickly and at lower cost.

Mediation differs from arbitration in important ways. As it is often said, "The goal in mediation is to persuade rather than defeat." A mediator helps the parties fashion their own agreed-upon solution and does not render a decision or award unless the parties have requested such a result. A primary benefit of mediation is that it preserves relationships.

In arbitration, the parties turn over the power to end the dispute to a third party—the arbitrator. In mediation, the parties retain the power to end the dispute, but they bring in a third party to provide a detached view of the situation and to help them develop a solution that they both can live with.

Because mediation is more informal than arbitration and is less costly than litigation and arbitration, it is a process that can preserve confidentiality, and once concluded it usually results in a signed settlement agreement. If a party breaches the settlement agreement, a party can arbitrate or litigate that breach.

The Mediation Process

Mediation is an assisted...