Demystifying Mediation

Demystifying Mediation

By Linda Mochon

While alternative dispute resolution (ADR) is no foreign concept to law students and practicing lawyers, many of us have mistaken views and misconceptions about what mediation is truly about. With a tendency to hold on to our own perceptions, we seldom question our understanding and knowledge. Once a belief or impression is formed, it is remarkably perseverant and difficult to change. As I began exploring the world of mediation during my law school experience at Osgoode Hall and as a Caseworker with the Winkler Institute, I began to realize that there were many misconceptions and myths that I held to be true about the process. The more people I spoke with and the more I read about the subject, the more I realized that I was not the only one. This realization encouraged me to write a blog piece where I dispel and demystify nine common misconnections that people tend to have about mediation and present a more accurate and reflective explanation of the process. As you read through, I invite you to challenge what you think you know about mediation and reconsider the myths that you may unknowingly believe to be true.

Myth 1 - Mediation is about winning

There is no winner or loser in a mediation. Through compromise and collaboration, mediation provides the forum to enlarge the pie and create more room for satisfactory outcomes. While an agreement or settlement might not be possible in every case, usually, the exploration and participation in the process are beneficial regardless. Mediators guide parties through the stages of mediation to keep them focused on collaborative interest-based problem solving and away from a competitive setting.

Myth 2 - After listening to both sides, the mediator will come to a decision and tell the parties how to resolve their conflict

Mediators are neutral and impartial third parties whose role is to facilitate the process and not to provide any judgments of the situation or offer a particular resolution. While mediators can offer guidance, the parties will be the ones that decide how they wish to proceed. This is what makes mediation so effective. The process leads parties to find common ground and heal their relationships through open dialogue and respect.

NOTE: There are different mediator “styles”- some mediators actively provide settlement options for parties to consider, and others do not so they do not interfere with the parties’ own approach. If parties prefer their mediator to be one way or the other, they should express this in advance during the mediator selection process.

Myth 3 - If a mediation does not result in a settlement or resolution, then it has failed

The goal of mediation is NOT to resolve a conflict at all costs. Parties should not be forced to settle and should always come to an understanding on their own terms. Rather than focusing on the final resolution, mediation allows parties to take the time to understand each other's interests and explore creative and flexible options for a resolution. Through mediation, parties have the opportunity to consider various courses of action. A mediation does not fail simply because parties were not able to come to a mutual understanding, but rather it might indicate that settlement on the terms discussed during mediation would not be acceptable by either of the parties. This is where creativity and open-mindedness come in where mediators attempt to guide the parties’ discussion to find a course of action that is amenable to both parties. However, even in the case where a resolution is not reached, parties often gain perspective, understanding and appreciation for each other, allowing them to preserve their relationship – this can certainly not be said to be a failure!

Myth 4 - Mediation is like going to therapy where the mediator makes the parties speak about their feelings and emotions

Mediators cannot “make” parties do anything that they are not comfortable with. One of the most important aspects of mediation is that it is entirely voluntary so that it is most successful when both parties come to the table in good faith and with the right intentions. While mediators can suggest a particular approach, direct the conversation, or ask questions, the parties should always feel free to express their concerns and uncertainties about the process and bring forward any hesitations they may be feeling. Mediators help create agreement when there is conflict between two or more people by acting as an impartial third-party intermediary for those parties. It is not just about speaking about emotions and feelings (although that may be part of it) but it is focused on finding common ground and reaching an understanding through directed and focused discussions.

Myth 5 - The mediator will give parties legal advice in the mediation to make sure the ultimate decision is legally binding

Mediator DO NOT give legal advice or make legally binding decisions. This is a common misconception about mediation. Mediation is an alternative dispute resolution process that aims to resolve conflict outside of the court, so mediators are not acting as lawyers or judges. While there is no guarantee of an agreement, if the parties do come to one, it would be written down and signed.  This written document may or may not be endorsed by the courts and become legally binding. That is why the parties coming to the process in good faith is so important.

Myth 6 - If I try to mediate but cannot come to a solution, everything I said during the mediation can later be used in court

Mediation is a confidential process. Parties should be comfortable sharing their perspective and having an open dialogue with the shared goal of finding a cooperative solution. Any notes made by the co-mediators are usually destroyed after the conclusion of the mediation process, although parties may wish to confirm this with their mediator as to their individual protocol with notes. Most mediations are conducted on a “without prejudice” basis so that nothing said and any information divulged during the mediation will not be brought into the courtroom. Because the information cannot be used in a subsequent or concurrent proceeding, it encourages people to be open, honest, and candid. For this to be effective, there cannot be any potential witnesses in the mediation room so that their perception of the events is not hindered.

Myth 7 – If you already tried to negotiate and did not reach an agreement, mediation will not be any different

Negotiations are not the same as mediation. Negotiations are usually discussions between the parties to the dispute only. In mediation, there is an independent third party that has no interest in the outcome, who guides the parties throughout the process. The support of the mediator has many benefits. For example, mediators can help the parties consider avenues of discussion that they had not yet contemplated in their previous negotiations. Even if parties have tried to negotiate a solution, mediation is still a promising avenue worth exploring. Mediation is also more personal because parties themselves are encouraged to speak, not just their counsel, and give a full picture of the issue in their own words.

Myth 8 – Mediation cannot give me what I’m looking for, I must sue the other party if I want to get this resolved

Mediated resolution can come in any form, including apologies, exchanges of services, promises and compensation. While the traditional legal system offers monetary compensation as the primary form of remedy, often parties are looking for more than that. Mediation offers a tailored approach to find a resolution, where parties can seek a combination of different remedial possibilities. For example, if the parties mediating are close friends, they may value healing their friendship as their main goal, so an apology may be more meaningful than compensation could ever be. This is what mediation offers – flexibility and personalized solutions.

Myth 9 - Mediation cannot create real and lasting closure

Mediation offers a tailored approach for parties to find a resolution through the Triangle of Satisfaction, a model created by Christopher Moore, author of The Mediation Process. It reminds us that there are three elements to real, lasting closure. If each of the three sides of the triangle are addressed in some way in the mediation process, resolution is more likely. These are 1. Procedural, 2. Emotional and 3. Substantive. The procedural aspect ensures that everyone is listened to and that the process has a coherent structure and is transparent. The emotional side looks to ensure that the parties’ sense of wrong is acknowledged and legitimated. From a substantive perspective, the outcome must be within the range of feasible results. When these three concepts are addressed in the mediation process, lasting closure is highly likely.