Topics on this page
- What is mediation?
- Why should I try mediation?
- When can mediation happen?
- Are there different types of mediation?
What is Mediation?
Mediation is a process where a trained impartial person (a "mediator") helps people in a dispute communicate, understand each other, and reach agreement if possible.
Mediation is a voluntary. If participants cannot come up with a solution that meets their needs, they cannot be forced to agree to anything. Agreements reached in mediation are only final when all of the participants are satisfied and willing to sign their names to the agreement.
Mediation is confidential. A mediator keeps what was discussed in mediation confidential, with a few exceptions. Parties can decide if they, the parties must keep the discussion confidential. Even some agreements can be kept confidential. Mediators may not be called to testify in court about any mediation communications. Exceptions include child abuse, elder abuse, preventing serious bodily injury or death, questions about the mediator's conduct, and fraud, duress, or misrepresentation in an agreement arising out of a mediation.
Read the Rule: Md. Rule 17-105
Mediation lets the people in the dispute decide what works best for them. Mediation revolves around the principle of self-determination. This means that the participants with the dispute decide what solutions will work for them. The mediator does not act as a judge. The mediator remains impartial throughout the process and will not give legal advice or make decisions about the dispute. Mediation is an opportunity for you to say what’s important to you and hear the other person’s perspectives. Mediation may help you figure out how to get your needs and the other person's needs met by reaching creative, customized solutions that work for everyone.
Mediation is not only for court cases. Although many courts refer parties in a case to mediation, you may also use a mediator as an alternative to going to court.
Mediation is not therapy. Although a person with counseling credentials (a social worker, psychologist or other professional) may also work as a mediator, mediation does not substitute for therapy. People who resolve problems through mediation often report that they feel better after having solved it themselves without someone else making the decision. Therapy may help you gain some emotional distance and be better able to handle the conflict but it is a different process. The role a therapist is very different than that of a mediator.
Mediation is not practicing law. Some mediators are also attorneys. However, when an attorney acts as a mediator, the attorney does not represent you. The attorney cannot provide individual legal advice or representation to one of the parties to the mediation. A mediator is a neutral third party. If an agreement comes out of your mediation and you wish to have it entered as part of a court order in an ongoing case or if you wish to have it enforced by a court, consider hiring an independent attorney to review the agreement on your behalf.
Why Should I Try Mediation?
Mediation is voluntary. While a court may order parties to attend mediation, the court cannot order them to reach an agreement. If the parties in court-ordered mediation do not reach an agreement, they can still proceed with their case in court.
Mediation is confidential. One of the drawbacks to going to court is that, by and large, everything said or submitted in connection with a lawsuit becomes part of public record. Only by a special order of a judge can information be "sealed" from public exposure. So whether your desire is to protect trade secrets or just to avoid washing your dirty laundry in public, subject to few exceptions, mediation is confidential.
Mediation lets the people in the dispute decide what works best for them. Agreements made in mediation come from the participants, not the mediator. You may have more control in mediation than in a court case. You may choose to sign a written agreement which can be enforced as a contract.
Mediation can help you preserve relationships. Does your dispute involve another person with whom you need to remain on good terms? This may include family members, coworkers, business partners, your landlord, neighbors, or others with whom you have a continuing personal or business relationship. Lawsuits can polarize and ultimately ruin relationships. A huge advantage of mediation is its ability to get a dispute resolved without destroying a relationship.
Mediation is informal. Unlike court, the atmosphere of mediation is informal. The parties and the mediator often meet around a table. There is no additional person recording the session or outsiders witnessing the discussion. You can wear whatever feels comfortable. There are no formal court rules. The parties and mediator establish general rules at the beginning of a mediation session.
Mediation is relatively quick. In many cases, the parties are able to reach an agreement more quickly than if the matter was decided in formal court proceedings. Lawsuits are incredibly time-consuming; it's not at all uncommon for them to drag on for months or even years. Unlike a crowded court calendar, the only calendars you need to consider are yours, the other party's, and the mediator's. In addition, aspects of litigation, such as the filing of complaints, motions, discovery requests, etc., are not a part of the mediation process.
Mediation is cost effective. Mediation may save you time and money as it is almost always far cheaper than litigation. Some services are free. Others are on a sliding scale. In other instances, the parties split the cost of a mediator. Since cost is largely a function of time, the quicker pace of mediation often means that the cost is lower than going to court.
Mediations can assist with negotiations. Sometimes you may hope to negotiate a fair settlement to a dispute, but are just not able to get the attention of the other side to start the process. For example, maybe the other party is a large company or government agency that refuses to negotiate with individuals. Or maybe you fear you have poor negotiating skills or are intimidated by the other party. Mediation may help in these kinds of situations. The mediator's presence can help provide a more comfortable environment for negotiations. The mediator can help you get your points across clearly to the other side. However, if there is a serious imbalance in power between you and the other side (such as a dispute with a large corporation), mediation may not be an appropriate way to resolve your dispute.
Mediation can lead to more creativity. Due to the nature of our legal system, judges must follow certain rules when deciding cases. The types of relief (solutions) that a judge can order are limited. This isn't because judges can't think creatively. Instead, some of the best solutions just aren't available to a judge who must follow the written law, and what other judges have decided. The flexibility you have to reach your own result is one of the greatest benefits of choosing mediation.
Mediation can fill in the gap when your dispute does not raise a legal claim you can take to court. Many types of common disputes simply do not raise a legal claim that you can take to court. Fortunately, mediation is available even when courts are not. For example, suppose a homeowner finds that there is no legal recourse regarding lights around a neighbor's driveway that shine in the bedroom windows. Mediation--which might bring to the surface other smoldering problems between the neighbors--would be a good way to tackle the dispute.
When Can Mediation happen?
Mediation can happen at any time: the moment a conflict arises, before and during a court case, and even during an appeal. Once a trial court has given a verdict, the issues for mediation change, but mediation is still an option. Learn more about mediations during the appeal process.
Different Types of Mediation
No one type of mediation is most commonly used. The four most common types of mediation practiced in Maryland are analytical, facilitative, inclusive, and transformative mediations. Some mediators use one approach exclusively in their mediation sessions. Many mediators use a combination of approaches. In each type, the mediator is neutral and the parties determine the outcomes. However, the mediator's role is a bit different in each type.
Facilitative mediation is based on the belief that, with neutral assistance, people can work through and resolve their own conflicts. In a facilitative mediation, the mediator takes an active role in controlling the "process." Process means things like setting the ground rules for how the problem will be solved. The mediator asks questions to identify the parties' interests and the real issues in the disagreement. The mediator helps the parties explore solutions that benefit both parties (sometimes called "win/win" solutions). The mediator does not offer an opinion on the strengths and weaknesses of the parties' cases. The mediator does not suggest solutions.
Transformative mediation is based on the belief that conflict tends to make parties feel weak and self-absorbed. Transformative mediators try to change the nature of the parties' conflict interaction by helping them appreciate each others viewpoints ("recognition") and strengthening their ability to handle conflict in a productive manner ("empowerment"). The mediator will intervene in the conversation between the parties to call attention to moments of recognition and empowerment. The parties set any ground rules for the mediation. The mediator does not direct the parties to topics or issues. Instead, the mediator follows the parties’ conversation and assists them to talk about what they think is important. The mediator does not offer opinions on the strengths or weaknesses of the parties’ cases or suggest solutions.
Analytical mediation is based on the belief that mediators with expertise in the issues in conflict can help the parties to assess the strengths and weaknesses of their legal or other positions and work to achieve settlements. The mediator controls the process and suggests solutions for resolving the conflict. Individual meetings between the mediator and one party may occur. The focus is primarily on settlement. The mediators will make their best efforts to get the parties to compromise, if necessary, to achieve a result.
Inclusive mediation is based on the belief that, with support and guidance through a problem-solving process, the parties, not the mediators, will develop a solution that meets their needs. There are two mediators present, based on a co-mediator model. Mediators focus on strategically listening for values, feelings, and topics and reflect these back to the participants using language that captures the intensity the participants expressed. Mediators follow a defined process that includes time for participants to talk about whatever they chose, build clarity as to what is important, identify topics participants want to resolve, identify the goals each participant has for each topic, brainstorm options, consider each of the generated options in terms of which would meet all participants’ goals, and determine areas of agreement, if any. Learn more.