Updated: Mar 3, 2021
As a mediator, I've been asked to explain what ADR, or alternative dispute resolution, involves. ADR can involve the assistance of a mediator or an arbitrator; in this post, I'll focus on mediation and will address arbitration in a separate post.
As ADR becomes commonplace, particularly because of an increased backlog of cases flooding our court system (especially now with the new challenges we are seeing due to lawsuits involving COVID19 or employer/employee misunderstandings due to wearing of masks and other apparel reflecting views or support for protests, Black Lives Matter, and so forth), I think I'll run into the question more frequently.
The brief answer to "what is mediation," is that mediation is a structured, interactive process involving dialogue and compromise, where an impartial third party (the mediator) helps disputing parties in resolving conflict through the use of specialized communication and negotiation techniques.
There are several advantages in this approach to conflict resolution. Typically, mediation will cost far less than formal litigation, and by avoiding the court system, there is no jury or judge to contend with. Instead, the parties will decide for themselves the best path to reconciliation. It provides a far more relaxed and informal process and is also generally faster and more efficient. Unlike a court case, parties may be more willing and agreeable to exchange documents that are beneficial to the outcome. All information is kept confidential. Both sides have input as to whom the mediator will be, and because of all these advantages, the disputing parties have more control over the entire process.
As in all things, there are some possible disadvantages, such as difficulty in appealing the resolution, the fact that punitive damages will probably not be awarded, and limited cross-examination of any witnesses or third parties. By its nature, it lacks a full range of discovery and leaves the parties with no documentation that will explain the final resolution.
Before taking this route, all parties involved can weigh these benefits and disadvantages. Then, they can decide whether to proceed with formal litigation or to go first with ADR, unless the court has ordered the parties directly to employ mediation to solve their differences, something which is occurring more and more frequently.
By the end of the mediation, both parties have worked toward a common ground to hopefully reach an agreement and resolution. While the mediator may suggest a resolution, he or she has no power to force that resolution to the parties. Most, but not all, mediations end in a satisfactory resolution.