Mediation and Mediation Training
Mediation Defined
Mediation is an alternative dispute resolution process that employs an independent third party, a mediator, to help parties resolve a conflict in a non-judicial setting. The goal of mediation is to help the parties reach a mutually acceptable resolution outside of the courtroom without imposing a decision or judgment.
During the mediation process, the mediator facilitates communication and negotiations between the parties, helping them arrive at a mutually acceptable agreement that serves both sides’ interests. Mediation agreements can be oral or written, with written agreements more likely to be considered binding, depending on state laws. Mediation is voluntary, confidential, and often a quicker and more cost-effective method of resolving disputes than going to court.
Mediation is unique compared to litigation (court cases) and arbitration. In litigation, a judge makes a binding decision, and in arbitration, the arbitrator acts similarly, deciding the outcome after hearing both sides. Mediation, on the other hand, emphasizes cooperation and gives the parties control over the outcome. The role of the mediator is to facilitate discussion, help identify underlying issues, and guide the parties toward a resolution that works for everyone involved. Mediation training programs are crucial in training mediators and preparing individuals, including legal professionals, to facilitate mediation effectively.
Unlike litigation, mediation is informal, flexible, and allows for creative solutions. It is also confidential, meaning the discussions and agreements made in mediation cannot be used in court should the dispute proceed to litigation. In contrast, court cases are public records.
What is the Purpose of Mediation?
The primary purpose of mediation is to facilitate a mutually acceptable agreement between parties in a dispute while keeping disputants out of court. Mediation aims to resolve conflicts in a non-adversarial and cost-effective manner, providing a flexible dispute-resolution process tailored to the parties’ specific needs. Unlike traditional litigation, mediation focuses on collaboration and finding common ground, helping parties reach a settlement that satisfies both sides.
Mediation can be used to resolve a wide range of disputes, including most types of civil cases, including family law and employment disputes. By employing a neutral third party, mediation encourages open communication and creative solutions, allowing parties to address their concerns and interests constructively. This approach helps resolve the immediate conflict while fostering better relationships and understanding between the parties.
What Does a Mediator Do?
During mediation, the role of the mediator is to ensure that the mediation process is fair and balanced, giving both parties an equal opportunity to participate in the discussion and work toward a solution. Unlike a lawyer or advocate, who represents the interests of one party, the mediator does not take sides, offer legal advice, or make decisions for either party. Sometimes referred to as a Neutral, the mediator is independent, with no stake in either party’s position. However, we know from neurobiology that there is no such thing as a completely neutral person, and mediators bring their own biases to the mediation room. Effective mediators must learn to recognize, confront, and manage their own biases through conscious self-management and self-reflection.
In their role as a neutral facilitator, a mediator helps the parties communicate more effectively, allowing them to voice their perspectives — de-escalating emotions as needed, relaying information and ideas between the parties, facilitating negotiations using creativity and finesse, and, if an agreement is reached, finalizes the terms of the settlement agreement. Unlike a judge or arbitrator, the mediator does not make decisions or impose a solution. Effective mediators undertake mediation training to help build the skills needed to facilitate discussions, build trust among the parties, and effectively manage the mediation process to get to a resolution that satisfies the needs of all parties.
How Does the Mediation Process Work?
Mediation is a voluntary process. The parties involved in the dispute agree to enter mediation willingly. They then mutually agree on a mediator and the ground rules for the mediation.
During mediation, the process is usually broken down into a series of joint and private sessions where a mediator guides the parties toward resolution. Each mediation session serves a distinct purpose in the process, helping to build communication, clarify issues, and work toward solutions and a mediation agreement. While mediations may vary, most processes typically include the following:
- Joint Session: The joint session allows the mediator time with all parties in the room. The mediator explains the ground rules and the process. The parties present their opening statements supported by evidence and voice their arguments and positions. Parties can also be brought back together for additional joint sessions anytime during the mediation process.
- Private Session or caucus: During a private meeting or caucus, the mediator meets separately with each side to explore their deeper concerns and interests. The mediator can also help identify and explore creative solutions in this confidential setting.
- Negotiation Stage: During the negotiation stage, the parties meet with the mediator to negotiate toward an acceptable solution for both sides. Negotiation can take place either in a private caucus or a joint session, depending upon the nature of the dispute and the parties’ preferences.
- Closing Session: When settlement has been reached, the mediator and the parties formalize the mediated agreement into a written, binding document. After the mediated agreement is formalized into a written document, the parties sign it to ensure its enforceability.
Benefits of Mediation
Mediation offers several benefits, including cost savings, time efficiency, and increased control over the outcome. Mediation is often quicker and more affordable than litigation, which can be lengthy and expensive. This makes it an attractive option for parties looking to resolve their disputes without incurring high mediation costs.
One of the significant advantages of mediation is that it allows parties to find creative approaches for solving conflicts that may not be available through litigation. The flexible nature of mediation enables parties to explore various options and develop innovative agreements that address their unique needs and interests.
Mediation is also a confidential process, which can benefit parties wanting to keep the dispute private. Information disclosed during mediation cannot be used in court, providing a safe space for open and honest discussions.
What Happens After the Settlement Agreement?
When both parties agree on a resolution, the terms are documented in a written agreement, most often drafted by legal counsel, outlining the obligations, actions, or concessions each party has agreed to. Both parties (with legal representatives, if applicable) review it, and once satisfied, they sign the document, formalizing the settlement.
If mediation does not result in a settlement agreement, the parties have choices. They can agree to return for further mediation, turn to arbitration, or litigate through the courts.
Mediation in Different Contexts
Mediation can be used to resolve disputes of any magnitude, from small claims to complex commercial disputes. Mediation is used to resolve business, government, contract, employment, environment, and family disputes in both court-ordered and voluntary settings. Mediation can also be used with other dispute resolution processes, such as arbitration or litigation, referred to as a hybrid dispute resolution process.
Is Mediation Binding?
In most cases, a signed settlement agreement is legally binding. Depending on the nature of the dispute (divorce, business contract, etc.), the agreement can be submitted to a court to make it enforceable as a court order or judgment. It is then up to the parties to fulfill their obligations outlined in the agreement.
If one party fails to comply with the agreement’s terms, the other party can usually take legal action to enforce it, especially if the agreement was filed with the court. The court may enforce the settlement just like any other contract or judgment.
Is Mediation Right for Me?
Determining whether mediation is suitable for resolving your dispute involves evaluating several key factors related to the nature of the conflict, the willingness of both parties to engage, and your desired outcomes.
Mediation is a very flexible dispute resolution process. It is typically appropriate when both parties are open to negotiation and seek a cost-effective, confidential, and faster alternative to litigation.
Do I Need a Lawyer for Mediation?
While not always necessary, having a lawyer represent you in mediation can be beneficial depending on factors like the complexity of your case, the stakes involved, and your comfort with negotiating on your own.
Mediators don’t provide legal advice. A lawyer can advise you on your rights and what a fair settlement looks like. In cases like divorce, child custody, or business disputes where the laws are complicated, a lawyer can help you understand the legal implications of any agreements. A lawyer can advocate for you during or after mediation if you feel disadvantaged or intimidated by the other party (e.g., one side has more financial resources or knowledge).
Mediation versus Arbitration: What is Best for My Case?
When considering alternative dispute resolution processes for resolving a dispute, some common questions asked are, “What is the difference between mediation and arbitration?’ and ‘Which process would be best for my legal dispute?’ Mediation and arbitration are two popular methods for resolving disputes outside the courtroom while avoiding costly and timely litigation. While both are forms of alternative dispute resolution (ADR), they have distinct features that set them apart. Understanding these differences can help parties choose the most suitable method for their needs.
Where do Mediation and Arbitration Fit on the Dispute Resolution Spectrum?
If you think of dispute resolution processes as a spectrum of cost, formality, and level of voluntariness, formal litigation would be at one end of the spectrum. It’s an expensive, highly regulated, and formal legal dispute resolution method. The litigation process focuses on legal knowledge, and the judge or jury (in the US) makes a legally binding decision. Furthermore, it is entirely involuntary: if you’re being sued or criminally charged, you can’t just decide to close the case.
Arbitration would be in the middle of that spectrum, and mediation would be on the opposite end.
What is the Difference between Arbitration and Mediation?
Arbitration
Arbitration is a process in which parties to a dispute engage an independent third party or parties to hear the sides of the argument and make a final decision on an award, much like a judge in the courtroom. However, arbitration takes place outside of the court system. Before hearing the award, opposing parties will either agree that the decision is binding or non-binding, meaning it can be appealed or rejected entirely.
Arbitration is more cost-effective than litigation but less cost-effective than mediation. It is more formal than mediation but less formal than litigation because it occurs outside the judicial process. It is more voluntary than litigation (since awards are not always a binding decision). Still, it is less voluntary than mediation (awards can be binding, and a party can be compelled to arbitration through an arbitration clause in a way they cannot for mediation).
Mediation
Mediation, on the other hand, is a form of facilitated negotiation that uses an independent third party to help disputing parties resolve their dispute. Mediation is an informal process that is flexible to the parties’ specific needs and is usually less expensive than arbitration. A key difference is that mediation is voluntary. The disputing parties hire a mediator to help them (the parties) reach an agreement, while the right to reach a settlement (or not settle) rests with the parties.
Both processes have merits and are important alternatives to traditional litigation.
For attorneys representing clients, mediation provides an opportunity to resolve disputes with creative solutions not available in either arbitration or in the courtroom. For parties, mediation is often the preferred conflict resolution method as they can participate fully and are not bound to an arbitrator’s decision.
What is the Difference between a Mediator and an Arbitrator?
The main difference between a mediator and an arbitrator is that the former assists the parties in coming to an agreement. In contrast, an arbitrator renders judgment based on an assessment of the facts and law.
What a Mediator Does
A mediator facilitates a conversation and negotiation between the parties involved to help the parties come to a mutually agreed-upon solution. The mediator does not decide the case but helps guide discussions. Mediation is non-binding unless the parties reach an agreement. Effective mediators need good communication and conflict resolution skills, as well as mediation skills training. While sometimes referred to as a neutral third party, a more accurate description of a mediator is an independent party who treats all parties equally and fairly in pursuit of a mutually acceptable solution.
What an Arbitrator Does
An arbitrator acts like a private judge. They hear both sides of the dispute, review the evidence, and then issue a binding decision, which the parties must follow.
Mediate or Arbitrate?
Deciding between mediation and arbitration depends on your specific needs, the nature of the dispute, and how much control you want over the outcome.
Mediation is a good option if you prefer to control the outcome and are willing to negotiate. It is ideal for disputes where the relationship between the parties matters, and you want to preserve relationships or keep the process cooperative. It is also beneficial if the dispute isn’t extremely adversarial and a middle ground is possible.
Arbitration is a good option if the dispute involves complex legal or technical issues requiring expert judgment. Also, if there is little hope for compromise between the parties involved, and you prefer a quicker resolution and want a final, binding decision without going to court, arbitration is a good alternative.
Read our blog post, “What is the Difference Between Mediation and Arbitration,” for a more detailed analysis of the best process for your case.
How much time does a mediation take?
When considering mediation for resolving a conflict, many people ask, ‘How long does mediation take?’ Mediation is an informal, structured alternative dispute resolution process that is both efficient and less expensive than traditional litigation. The process is managed by a neutral third party, a mediator, who guides disputants in discussions and negotiations toward finding a mutually acceptable solution while avoiding litigation and trial.
No two mediations are alike. The amount of time to complete a mediation depends on several factors.
What Factors Affect How Long Mediation Takes?
Several factors can impact the length of mediation. These include the complexity of the case, the number of parties involved, the level of cooperation between parties, and the experience and effectiveness of the mediator. Additionally, the parties’ willingness to compromise and the availability of relevant information may influence the mediation process.
Generally, mediation can last from a few hours to several sessions over days or weeks. Most court-annexed mediations are shorter than multi-party commercial cases. Two-party cases can often be resolved in half to a full day, but that, too, can vary. More complex, multi-party cases can sometimes take multiple sessions spread out over a year or more to resolve.
How Long Does it Take to Schedule Mediation?
The time it takes to schedule a mediation can vary depending on several factors, including the parties’ availability, the mediator’s, and the dispute’s complexity.
Both parties must agree to mediation and find a time that works for everyone. Mediation can be scheduled within days or weeks if the parties are motivated to resolve the dispute quickly.
In cases where parties have busy schedules, finding a mutually agreeable date may take longer, potentially several weeks or more.
The mediator’s availability is another critical factor. If the mediator is in high demand or has a full calendar, it may take longer to secure a date. On the other hand, if the mediator has open availability, mediation could be scheduled relatively quickly.
Using mediation services or private mediators can also affect the timeline. Court-appointed mediators or those from established services might have more structured timelines, while private mediators typically offer more flexibility.
If a court mandates mediation, the court may provide deadlines for scheduling the mediation session. This can sometimes expedite the scheduling process, with mediations typically occurring within a specific window (e.g., 30 to 60 days from the court order).
Mediation Process and Timeline
From start to finish, the mediation process can be broken down into various stages with an estimation of the average time needed to complete each one.
Preparation and Agreement – Convening
The mediation process begins when both parties agree to resolve their dispute through mediation and request mediation. This may happen voluntarily, as an alternative to litigation, or be mandated by a court. In either case, the parties select a mediator or work with a mediation service to assign one.
Before mediation begins, the parties agree on essential terms such as confidentiality, the mediator’s fee, and logistics like the sessions’ date, time, and place.
This step, known as Convening, typically takes anywhere from a few days to several weeks, depending on the availability of both parties, the mediator’s calendar and any specific needs or conditions related to the dispute.
Once the mediator is selected and the terms of the mediation are established, both parties are required to prepare for the session. This might involve gathering relevant documents, agreeing on a process design and participants, and reviewing the issues at stake, often with attorneys. Several days or weeks may be needed to complete the preparation or convening phase.
The Mediation Opening
The mediation itself sometimes begins with an opening session where the mediator explains the mediation process, their role, and the role of the parties. Ground rules are discussed, and the focus shifts to the parties.
If parties do not want or are unable to meet together, the mediator meets with each side individually to begin the process separately.
Each party is then encouraged to present their side of the dispute. This involves outlining the facts, their perspective on the dispute, and their desired outcomes.
The opening session usually takes around 30 minutes to an hour, depending on the case’s complexity, the number of parties, and how thoroughly each party wants to explain its stance.
Joint Discussion Sessions
After the opening statements, the mediator may facilitate a joint discussion session between the parties. The mediator helps the parties identify common ground and explore possible solutions to the dispute.
A joint session is often the first time parties have come together to hear the other side’s perspective and can help parties reach agreement and repair relationships.
Private Sessions or Caucuses
Private sessions or caucuses may also be utilized to allow the mediator time to speak privately with each party to better understand their concerns and goals. If there are sensitive issues that one party is hesitant to discuss openly, the caucus allows the mediator to explore these issues privately and without escalating conflict.
The joint and private mediation discussions can take several hours or may involve multiple sessions depending on how far apart the parties are in their positions. In many cases with two parties, these discussions may be completed in a single session lasting 2–4 hours. In more complex disputes, multiple sessions over several weeks might be required.
Negotiation Phase
In the negotiation phase, the parties propose, evaluate, and negotiate potential solutions to the dispute. With the mediator’s assistance, they work toward a resolution that satisfies both parties’ core interests. The mediator may suggest possible compromises or creative solutions, but ultimately, the parties retain control over the outcome.
The negotiation phase can last anywhere from a couple of hours to several weeks, depending on the complexity of the issues, the number of parties involved, and their willingness to compromise.
Reaching a Written Mediation Agreement (or Not)
If the parties reach an agreement to settle their dispute, legal counsel helps them draft a formal written mediation agreement outlining the terms of their understanding. The parties sign the agreement, and it becomes a legally binding contract.
The agreement reached is a mediated settlement agreement and, in most jurisdictions, is enforceable in court. If the parties cannot reach an agreement, they can explore other legal options, including arbitration or litigation.
Drafting and signing the agreement usually takes about 30 minutes to an hour. However, in complex cases, finalizing the agreement may require additional time if lawyers disagree over wording or other decision-makers need to review it.
Post-Mediation
Once a written agreement is signed, the mediator may stay involved to ensure that all agreed-upon terms are completed. If the mediation fails, the parties may need time to reassess why the mediation was unsuccessful.
Conclusion
Mediation provides a flexible, efficient way to resolve disputes. The time required for mediation varies based on the complexity of the case and the parties’ willingness to cooperate. In simple cases, it might be resolved within a few hours, requiring only one session, while more complex issues may take several sessions spread out over weeks or months.
Effective mediators undertake mediation training and develop the skills required to help parties arrive at solutions that are in the best interests of all parties.
Regardless of the duration, mediation offers a structured process designed to help parties reach a mutually acceptable resolution while avoiding the adversarial nature of litigation.
What does a Mediation Lawyer do?
A mediation lawyer or attorney, also called a mediation advocate, represents clients in the mediation process.
Sometimes confused with a lawyer mediator or attorney-mediator (an independent, ‘neutral’ third party hired to facilitate conversation and negotiations between the parties), a mediation lawyer supports and advises only one of the parties involved in the mediation process. Mediation lawyers are crucial in supporting, advising, and helping clients navigate the mediation, ensuring their rights and interests are effectively represented and protected. Consulting with a lawyer can ensure that your rights are effectively represented and advocated.
Mediation lawyers play a critical role in mediation, and their successful participation depends entirely on understanding the mediation process and the unique role they play when representing clients in mediation compared to in the courtroom.
Consulting with a mediation lawyer can ensure that your rights are effectively advocated during the mediation process.
What is Mediation, and How Does it Work?
Mediation is a form of alternative dispute resolution (ADR) that involves the assistance of an independent third party to help resolve disputes. Unlike litigation, which can be adversarial and time-consuming, the mediation process is designed to be cooperative and efficient. During a mediation session, the mediator works with the parties involved to identify the issues in dispute and facilitate a mutually acceptable agreement. It is important to note that, unlike litigation, parties retain control over all decisions regarding how the dispute is resolved.
The mediation process typically involves several key steps:
- The Convening Process – The mediation attorney, with input from their client and the mediator, determines the appropriate time for mediation, the best process for their client, who are the key participants, and other critical pre-mediation considerations to ready themselves and other parties for the upcoming mediation.
- Opening – While each mediation is different depending on the type of dispute and the parties, most begin with either a joint session with the mediator and all the parties or separate private conferences. When the parties are uncomfortable meeting face to face, the opening can be accomplished through private discussions with the mediator, the mediation advocate, and the party. In either case, parties (or their counsel) present the dispute from their perspective, identifying issues and concerns that led to the dispute.
- Negotiation: After the mediator concludes that all issues have been identified and the parties are ready, the negotiations begin. This can be done in joint sessions, but more typically, the mediator meets privately with the parties and helps explore potentially acceptable solutions. The mediator often spends considerable time shuttling between rooms, communicating positions, and pursuing mutually acceptable settlement terms.
- Agreement and Closing: Once the parties reach a settlement, both parties typically write and sign an agreement, making it a binding resolution.
By focusing on open communication and cooperative negotiation, mediation aims to resolve disputes in a manner that ultimately serves both side’s needs.
What Does a Mediation Lawyer Do in the Mediation Process?
When representing a client in a mediation, the role of a mediation attorney/lawyer is to protect and advance the client’s best interests in pursuit of settlement while encouraging a fair and efficient conflict resolution process. These responsibilities include:
- Advising the client by explaining the mediation process, legal rights, and potential outcomes to the client.
- Preparing the client for mediation, including gathering necessary evidence and helping the client identify their goals for the mediation.
- Negotiating settlement terms on the client’s behalf.
- Reviewing settlement agreements and ensuring that any agreement reached during mediation fairly reflects the negotiated terms and will be legally enforceable.
How is a Mediation Strategy Different from a Litigation Strategy?
Lawyers’ strategies for representing clients in mediation differ significantly from those traditionally employed by litigators representing clients in a courtroom. For instance, mediation strategies focus on effective negotiation and problem-solving in employment disputes to resolve conflicts such as wrongful discharge or workplace issues. A genuinely effective mediation attorney recognizes the value of mediation for dispute resolution and understands that achieving a successful outcome for their clients involves the attorney actively listening to all parties involved, building trust through open communication and transparency, remaining flexible in exploring potential solutions, and applying creative problem-solving techniques to reach mutually beneficial agreements.
Like in the litigation environment, the mediation lawyer offers their client legal and strategic advice on the dispute. They help negotiate an agreement with the other party and advise the client on final decisions. Unlike in litigation, where lawyers act as zealous advocates of their client’s position, the effective mediation lawyer knows how to make the other parties feel heard and respected and, therefore, more likely to consider their client’s position.
The Benefits of Mediation
Mediation offers several significant benefits that make it an attractive option for resolving disputes:
- Cost-effective: Mediation is often less expensive than court, as it typically involves fewer legal fees and a shorter timeline.
- Time-saving: Mediation can resolve disputes quickly, often in a matter of hours or days, compared to the months or years that litigation can take.
- Increased control: Parties maintain control over the outcome of the dispute as they work together to reach a mutually acceptable agreement rather than having a decision imposed by a judge or jury.
- Improved communication: Mediation can improve communication between parties, helping them understand each other’s perspectives and fostering a more amicable resolution.
- Confidentiality: Mediation is a confidential process that can be beneficial for parties who want to keep their dispute private and avoid public scrutiny.
Do I Need a Lawyer for Mediation?
While not always necessary, having a mediation lawyer represent or advise you in a mediation session can be beneficial depending on the complexity of the dispute and your comfort with negotiating legal matters on your own.
Suppose the dispute involves complex legal matters, financial assets, or important personal and emotionally changed matters. In that case, a lawyer can help you fully understand your rights, obligations, and potential long-term consequences of specific settlement terms.
Moreover, suppose there is a power imbalance between you and the other party (such as in an employer-employee dispute or a divorce where one party has more financial or legal knowledge). In that case, a lawyer can help level the playing field and ensure you are not exploited.
In highly emotional or contentious disputes, a lawyer can help you stay focused on critical issues while avoiding emotional decisions.
A lawyer will assist in reviewing any proposed settlement agreement to ensure it is fair and enforceable and that all legal aspects are appropriately addressed.
What Skills Do Effective Mediation Lawyers Need?
A lawyer needs a different set of skills to effectively represent clients in mediation compared to traditional litigation. While litigation demands sharp adversarial tactics and courtroom expertise, mediation emphasizes collaboration, negotiation, and problem-solving. An effective mediation lawyer believes in the value of compromise and collaborative solutions, which can significantly impact the mediation outcome.
A mediation lawyer can guide clients to a successful mediation by preparing them thoroughly and ensuring they understand the process, goals, and possible outcomes. The advocate should encourage realistic expectations, helping clients focus on their core interests rather than rigid positions. The advocate facilitates constructive dialogue and explores creative solutions by fostering open communication and actively listening to the other party. They balance assertiveness with flexibility throughout the mediation, strategically guiding negotiations while promoting compromise. Managing emotions, de-escalating tensions, and staying patient throughout the process ensures that both parties feel heard, increasing the chances of reaching an agreement.
What Should I Look for When Hiring a Mediation Lawyer?
When hiring a lawyer to represent you in mediation, it’s crucial to consider several factors to ensure you choose the right advocate for your needs:
- Experience: Look for a lawyer with substantial experience in mediation and alternative dispute resolution (ADR) processes. An experienced lawyer will be familiar with the nuances of mediation and can effectively guide you through the process.
- Familiarity with the law: Ensure the lawyer is well-versed in the specific laws and regulations relevant to your case and your state. This knowledge is essential for providing accurate legal advice and protecting your interests.
- Communication style: Choose a lawyer who communicates clearly and concisely. They should be able to explain complex legal concepts in a way that is easy to understand and keep you informed throughout the mediation process.
- Availability: Select a lawyer who is available and willing to work closely with you to achieve your goals. Their commitment to your case can significantly impact the outcome of the mediation.
- Fees: Look for a lawyer with a transparent fee structure. Understanding the costs involved at the beginning of the process can help you avoid unexpected expenses and budget accordingly.
Additionally, consider asking potential lawyers the following questions to ensure they are a good fit for your needs:
- What experience do you have with ADR processes and mediation in particular?
- How will you communicate with me throughout the mediation process?
- What is your approach to mediation, and how will you help me achieve my goals?
- What are your fees, and how will they be computed?
- What type of mediation process and specific mediator is right for my case?
By carefully evaluating these factors and asking the right questions, you can find a mediation attorney who is well-equipped to support you through the mediation process.
Is there Specialized Mediation Training for Lawyers?
Mediation lawyers play a crucial role in mediation, and their effectiveness hinges on their thorough understanding of the mediation process and the unique role they play when representing clients in mediation as opposed to in the courtroom. Specialized training is particularly important for handling family law issues, such as divorce and custody disputes, which require a nuanced understanding of both legal and emotional aspects. Yet, most lawyers are under-equipped with the skills and strategies for effectively advocating for their clients in mediation.
Because the mediation lawyer’s role is unique and the skills they need differ widely from those traditionally taught in law schools, Edwards Mediation Academy has developed a course targeted explicitly for lawyers representing clients in the mediation process.
Listen to what one prominent U.S. mediation advocate says about the importance of learning how to effectively represent clients in the mediation process.
A mediation lawyer equipped with specialized training, skills, and strategies can play a critical role in guiding their clients to a positive mediation experience.
Conclusion
Mediation is a valuable tool for resolving disputes in a cost-effective and time-saving manner. The most effective mediation attorney or lawyer supports mediation rather than the traditional role of zealous advocates for their client’s positions. When hiring counsel to represent you in mediation, it’s essential to look for the following skills: familiarity with the law surrounding your case, clear communication skills, and significant mediation experience, to name just a few.
By understanding the mediation process and what to look for in a mediation lawyer, you can make informed decisions and create your best opportunity for a successful mediation. With the right support, mediation can lead to a mutually beneficial resolution, helping you navigate disputes confidently and clearly.
I’d like to become a mediator; how should I start?
While this seems like a complex topic to discuss, we will break it down into several steps for you to consider:
What are the educational requirements or mediator certification requirements to practice as a mediator in the US?
As strange as it sounds, there are no national educational or certification requirements to practice as a mediator in the US. You do not need a law degree nor do you need a certification to practice.
While some courts require a law degree to mediate on their panel, there are no such requirements for private mediation, workplace mediation, or many other career opportunities. Some specific mediation practice areas may require advanced training.
That is not to say that having a law degree or a certificate from a qualified mediator trainer is not beneficial, depending on the geographical market you are looking to work in and the types of clients you would like to assist.
For example, some courts do have lists of courses that they recommend to be a court-appointed mediator for that court. But each court is different (even within the same country or state), so it is important that you contact the court administrator.
Many students contact their local court ADR program after completing our course and are admitted to the panel. However, we always recommend reaching out beforehand if you want to practice as a court-appointed mediator.
Do I need to become a Certified Mediator to practice in the US?
Unlike other countries, the United States has no national qualifications or standards for practicing as a mediator. Although a few organizations market themselves as National Mediation Certification organizations, that is misleading.
So, when looking at training programs, if they are Mediation Certification Programs, ask what accrediting agency has awarded their status. Most likely, it is an internal certification, meaning a marketing phrase. If you note it is a Mediation Certificate program, that means you will receive a certificate upon successful completion.
Credentialing is not new, nor is there anything inherently wrong with it. But as you can read in Bruce’s blog, Certified Mediator? The Peacock and the Sparrow, rather than focus on a marketing term, it is best to showcase your underlying skills and ability to help others resolve disputes by becoming the best mediator and dispute resolution professional you can be. Look for training from those who have experience and lots of it. Do not settle for less.
How can I build the necessary mediation skills to be a strong mediator?
At the minimum, a good mediator must be a strong facilitator with a detailed knowledge of conflict resolution processes. Communication skills, especially active listening, are crucial in mediation, as they help understand and resolve conflicts effectively. They must be capable of remaining balanced in the face of difficult circumstances. But these are just the minimum. A good mediator must also develop empathy, cultural and bias sensitivity, mindfulness, and emotional intelligence skills to help establish trust and rapport among parties to a highly emotionally charged dispute. The best way to build and refine these skills is through high-quality training from expert mediators with highly developed skills. Gaining practical experience by observing an experienced mediator is essential to honing these skills even further.
A basic mediation training course taught by instructors with little experience mediating will fall short of providing a foundation for success.
Those aforementioned skills are precisely why mediation courses at Edwards Mediation Academy are delivered by mediation experts with decades of experience and center around a virtual shadowing experience of a mediation! The curriculum is built around the concept of the Mediator’s Mind™, a specific mindset used to approach mediation with all of the aforementioned skills.
You can check out our courses at Edwards Mediation Academy and more about our instructional style and virtual shadowing methods here!
What differentiates an average mediator from an exceptional mediator?
To mediate effectively, one must undergo training and hone the skills we discuss in our courses—listening skills, patience, establishing ground rules, using open-ended questions, and negotiation. Understanding the mediation process and the ability to facilitate communication between parties is crucial. However, it’s equally important to remain humble and open to learning. Observing and learning from other mediators with a good reputation can significantly improve one’s skills and contribute to becoming an effective mediator.
With a process as complex as mediation, mediators inevitably introduce themselves into the conflict. Therefore, understanding how one’s actions, emotions, thoughts, and words affect the course of mediation is essential. What distinguishes the average from the exceptional mediator is the ability to be self-aware and to manage one’s mind, body, and emotions throughout the mediation. This self-awareness and emotional management are not just skills but necessities for successful mediators, and they are qualities that can be developed and honed with practice and dedication. Learn more about this concept in our blog on Rethinking Essential Skills.
The journey to mediator excellence involves ongoing learning, experience, and self-reflection. Bruce Edwards, co-founder of Edwards Mediation Academy, refers to this as continually developing your Mediator’s Mind™.
Over 30 years ago, Bruce coined this phrase to provide context to the mental model he believed was required to help others in conflict most effectively. Whether developing mindfulness, perfecting communication skills, or respecting diversity and self-determination, this mental model provides a north start for the effective mediator to follow throughout the mediation process. It is a metaphor for how the skilled mediator mentally prepares for mediation and influences each moment-to-moment interaction throughout the mediation process. Read more about Bruce Edwards and The Mediator’s Mind™ in this article from the 2024 Daily Journal.
What career opportunities are available to mediators, and how can I take advantage of those career opportunities?
There are opportunities for mediation within a vast number of industries, including civil and commercial mediation, consumer mediation, workplace mediation, ombuds work, family and divorce mediation, real estate mediation, environmental mediation, international mediation, probate mediation, elder mediation, nonprofit and community mediation, just to name a few. Aspiring mediators can gain experience at a local community mediation center, churches, and neighborhood organization, finding opportunities to co-mediate with an experienced mediator and searching for volunteer opportunities.
Seeking advice from experienced mediators can help identify reputable mediation programs and gain insights into different practice areas. A professional mediator can play a crucial role in various industries, helping people resolve conflicts in a nonadversarial setting. Watch one of our experts describe her journey into a mediation career.
Think broadly, but target your search.
With so many opportunities in the alternative dispute resolution field, it is essential to target your efforts to those industries and areas you have experience in. Many of our Mediation Skills Course students come from backgrounds as business leaders, therapists, police officers, religious leaders, and teachers, seeking to learn new skills to help others resolve disputes using the mediation framework. Others are looking to make a career as a full-time mediator. Still, others are practicing attorneys looking for additional training to represent their clients and resolve their disputes before going into the court system. If you want more information, read our blog: A Roadmap to Build a Successful Mediation Career.
What to look for in a quality mediation training program?
When searching for a mediation training program, look for one with the following:
Experienced instructors—While understanding theory is important, the nuanced skills used to assist in conflict resolution can only be learned from someone who has real-world experience, and a lot of it—what Malcomb Gladwell would describe as “mastery in the field.”
Interactive learning – True learning comes from experience, including failure. All too often, introductory courses are long on lectures with limited opportunities to incorporate practical skills. Look for a training program that is developed for adults and how adults learn. For more on this, visit our page on Why EMA?
Offered by or approved by a credible institution – Look for programs that have been approved by a state bar association or other credible institution. Do not fall for catchy marketing phrases like “Become a Certified Mediator” unless you want to mediate on specific court rosters or other panels with specific training required (and verify with the panel beforehand).
To summarize:
Becoming a mediator or alternative dispute resolution professional is a fulfilling and noble career choice. However, rather than simply signing up for basic mediation training, take your time to explore the various career options, research the training and additional requirements for the type of interventions you would like to do, and begin your journey knowing that to make a true impact in this profession, education, and training is ongoing.
How do I find the Best Course for Me?
When searching for a mediation training program, look for one with the following:
Experienced instructors:
While understanding theory is important, the nuanced skills used to assist in conflict resolution can only be learned from someone who has real-world experience, and a lot of it—what Malcomb Gladwell would describe as “mastery in the field.”
Learning from others with limited mediation experience (or with poor reputations) will not help you reach your goal.
Interactive learning:
True learning comes from experience, including failure. All too often, introductory courses are long on lectures with limited opportunities to incorporate practical skills. Look for a training program developed for adults and how adults learn. For more information, visit our page on Why EMA.
Offered by or approved by a credible institution:
Look for programs that have been approved by a state bar association or other credible institution. Do not fall for catchy marketing phrases like “Become a Certified Mediator” unless you know that that specific certification is required to mediate with the panel you are interested in joining. Verify before purchasing.
