The success of a mediation is increased if the participants understand the process and come to mediation prepared to find a mutually agreeable solution and not focus on preparing for trial. The cost in both time and money to proceed to litigation often outweighs the benefit of focusing on uncovering participants’ interests and seeking an early settlement before huge costs have been incurred.
Participants in mediation, to effectively resolve their issues, need to participate in discussion which is different from their previous conversations. Mediation does not require participants to prove that they are right or that the other person is wrong. Mediation is not intended to have a win/lose outcome. The term win/win is often spoken about in mediation negotiation. Mediation is not intended to find fault, assign blame or punish anyone. Mediation is a voluntary process where there is a confidential conversation between the participants assisted by a mediator. The mediator will play a neutral role to help the participants resolve or manage the dispute. The mediator’s job is to assist the participants in understanding each other and to reach agreement. The mediator will help participants identify issues and interests that need to be resolved. Once issues and interests are identified, the mediator will help the participants brainstorm solutions. The mediator will not provide legal advice but will encourage the participants to rely upon advice they receive from their legal advisors. The mediator can help the participants reality test their legal entitlements. It is often the case that the participants’ lawyers may disagree about a legal issue and participants will balance the legal advice they have been provided with other needs they seek to have met.