As an alternative to litigation, arbitration or adjudication, mediation is a voluntary process conducted informally without prejudice, in confidence, by a Mediator who is both neutral, and seen to be neutral.
While structure and decorum provide a framework for progress, formality is not intrinsic to mediation. Nothing is mandated. The process happens naturally and the Mediator facilitates progress towards outcomes acceptable to both sides.
Sessions may be ‘joint’ (parties in direct discussions with one another, with a Mediator present) or in caucus (a Mediator and each of the parties solely, in private session).
A Mediator is bound in confidence not to disclose information without express permission, whether to outside parties or ‘the other side’. Disputants invested in their reputation or public image are thus protected by the confidentiality of both process and content. No ‘airing of dirty laundry’.
On conclusion, the Mediator’s notes are destroyed. If called to testify, she/he can object on the basis that information pertaining to the matter is privileged. Additionally, proper recollection of events cannot be substantiated in the absence of records, rendering it entirely pointless to be called to testify.
The final agreement is the only non-confidential document but does not necessarily contain particulars of the dispute or the proceedings.
Either party may withdraw from the proceedings at any time they choose, without cause or reason.
Dialogue, data, notes and the likes arising from mediation are usually inadmissible in court. Combined with the control over ‘who sees what’, mediation becomes a ‘Safe Space’ to work creatively towards resolution.
Experts may provide clarification on a case, but their input cannot be used to drive outcomes. Decisions, and their practical implications are always held by the parties.
A Mediator cannot be involved in change if a conflict of interest exists. Even perceptions of bias preclude participation in such case.
The Mediator is obligated to carefully consider his/her involvement in a matter to ensure unequivocal fairness to both parties, refusing the assignment even for the slightest reservation.
Mediation shifts the focus from “positions and rights” to “interests and needs”. It is the interests of opposing parties that inform the process, rather than legal, moral, ethical, religious or equivalent rules-based standpoints.
One might as well try to ride two horses moving in different directions, as to try to maintain in equal force two opposing or contradictory sets of desires ~ Robert Collier