In the judicial sector there are two distinct court functions: civil and criminal courts. Criminal courts handle issues of crime while civil courts handle mainly legal suits where people are wishing to get back money lost, stop someone from doing a harmful action, induce someone to carry out a beneficial action, disperse funds whose owners are disputed or questionable, break contracts that have immense legal and social impact on the participants, clarify issues of question, and a host of other issues. The civil courts are primarily based off of British Common Law, the US Constitution, federal treaties, individual state constitutions, judicial administrative code and mandates (rules that the courts puts on itself), and case law (the using of previous court rulings to give context and continuity in present and future rulings).
As one can imagine, the legal world can be confusing and vexing to most participants embroiled in legal disputes. What the courts see as “justice” is also often very different than what other cultures see as “justice.” There is also a large wait time as a limited number of courts handle a near exponentially growing number of conflicts from a similarly growing population. Plus, there is usually a high cost associated with bringing an issue to trial.
For this reason, the courts have turned to trying to find alternatives to the legal process in order to handle certain types of disputes. Professionals in the field of Alternative Dispute Resolution have been a monumental help in this endeavor. One way that ADR has helped is with the employment of mediation, mostly in civil issues to re-empower the participants so that they may resolve the dispute without need for lengthy and costly court trials. However, even though it is now mandated in many jurisdictions before one can proceed with trial, most Americans are still unclear as to what mediation truly is.
In a nutshell, mediation is a Conflict Resolution practice under the umbrella of ADR which is used as a court diversion program. Because mediations typically deal with civil suits, the dispute is usually treated as a private matter. Facilitating this process is a trained and certified neutral third party (called a mediator) who helps opposing sides to resolve issues of catabolic conflict. Because these matters are seen as a private matter, many states have rules which make most commentary said in a mediation “privileged” unless both parties agree otherwise.
But what can one expect when attending a mediation session for the first time?
Usually, the session will start off by the mediator explaining the process. From there, each side will be afforded an opportunity to explain the issues that they feel are important to the issue at hand. Both sides are urged not to interrupt each other and usually the side listening will be given paper and a pen to jot down notes and questions.
Depending on the situation, a mediator may call for a “caucus.” A caucus is nothing more than a private meeting between the mediator and one of the participants in the conflict. These caucuses allows for the mediator to privately address issues regarding the case so that a solution might be found. Sometimes the party will allow the mediator to share all, or part, of what happened in the caucus.
Out of fairness, most mediators will speak with both parties individually should a caucus be called.
Mediators only try to help the participants come to a resolution and agreement. The participants of the conflict are perceived as the true “owners” of the conflict and therefore the mediators let the “owners” ultimately “drive” how and where they wish for the conflict to go. Sometimes a mediator may ask pointed questions in order to give clarity or context. For instance, “I am going to take you for everything that you are worth!” might be followed by a mediator asking the participant, “That is fine and good if you wish but have you thought as to how long it will take for you to prosecute this matter through the courts?” However, anything and everything that the mediator does has to be unbiased and ultimately empowering so that both parties are allowed to work past differences and come to peaceful agreements.
In most states, there are stringent certification programs in place that regulate court-based mediations at different levels. These mediators specialize in various legal fields such as divorce, civil suits, juvenile delinquent disputes, etc. with each specialization usually having its own special certification and additional training.
Outside of the court diversionary system, there are various other types of mediators that may or may not be regulated by a government agency. These mediators serve a unique correlation with the courts since they often handle matters well before they ever get a chance to get so out of hand that court reaction is required or called for. Every year the field opens up more as disputes become more complex. To date there are mediators that handle elder care issue, transportation issues, mortgage foreclosure cases, community issues, employee grievances, etc.
In these cases, finding the right mediator is critical since there usually isn’t any government oversight for their actions. Before choosing a mediator, it is wise to look over their credentialing. Ask how many cases that they have mediated, how many classes on mediation they have instructed, have they written anything on mediation, etc. Be careful that the mediator is professional and neutral. Remember, since a mediator is a neutral, (s)he should not be keeping count of “wins” vs. “losses” as since there is no such thing to an impartial neutral. Finally, make sure that this a person that both sides can work with. Chances are if you both can agree on a neutral to help you reach an agreement – you are already headed in the direction to a peaceful agreement before you step inside a mediation conference room!