Many courts either order, or offer, mediation as an alternative to litigation that gives the parties to the lawsuit the opportunity to reach an agreement outside of the court. In most cases, a mediator is a lawyer who has received specific training on how to mediate legal disputes. A mediator is a neutral party and does not make legal decisions. His or her only function is to try to assist the parties to the lawsuit to reach an amicable agreement. The best and most efficient mediation techniques include information gathering and listening, as well as educating and negotiating.
Mediation may be mandatory or voluntary, depending on the policy of the court or the law in the jurisdiction where the case was filed. Mediation is commonly ordered in contested divorce cases, contract disputes, and will contests, among other types of legal cases. As a rule, mediation is not binding on the parties, meaning that, if the parties do not reach an agreement, then the case will simply proceed to litigation in the court.
Gathering information is among the most important mediation techniques. Although the parties will have an opportunity to submit relevant information prior to the mediation, a good mediator will usually spend a considerable amount of time with each party at the beginning of the mediation trying to gather information and understand each party's point of view. The mediator will usually want background information on the lawsuit, as well as to get an idea of each party's bottom line.
Listening to the parties involved in the mediation is another of the crucial mediation techniques. The mediator must understand what each side is trying to achieve in order to be effective. He or she must be able to clearly and concisely express each party's issues to the other side during the negotiation phase of the mediation. The only way a mediator can accomplish this is by listening carefully to each side both before, and during, the mediation session.
Educating the parties to a mediation is frequently another of the many necessary mediation techniques. Although parties to a mediation are often represented by an attorney, they are not required to be. As a result, a good mediator must understand the law and is often required to educate a party regarding his or her legal position during a mediation session.
A good mediator can claim negotiation skills among his or her mediation techniques as well. While a mediator does not take sides, he or she is responsible for negotiating on behalf of both sides in an attempt to reach an agreement. A good mediator will know how to negotiate from a position of neutrality and reach a mutually acceptable agreement.