Misconceptions about Mediation

Over the past several decades, mediation has become increasingly useful in resolving disputes.  In many instances, it is, in effect, the new way to litigate, meaning it is the sole forum utilized for resolving a dispute, not merely an adjunct to the court proceeding.  Yet, despite the growth in the alternative dispute resolution industry, several misconceptions about mediation hinder people from considering it a viable option for conflict resolution. Understanding these misconceptions is crucial for individuals considering mediation, because it can a valuable tool that empowers parties to take control of their conflicts and find mutually acceptable resolutions in a collaborative and respectful environment.

Here are some of the most common misconceptions and explanations for why these concerns are generally misplaced:

Myth 1: Mediation is Just Like Trial:  Mediation is not like a trial, and it should not be approached like a trial.  An essential component of mediation is that it is both voluntary and non-binding.  While there are certain court-ordered mediations, the parties are nevertheless not forced to reach an agreement simply by participating.

The court is a public forum.  Mediation is a private process solely between the parties. One of the most important characteristics of mediation is the requirement of confidentiality.    This addresses another mediation myth that what is said in mediation can be used at trial.  It cannot.  So, rest assured that “what happens in mediation stays in the mediation.” Notably, this crucial element of the mediation process was fortified in Georgia with the adoption of the Uniform Mediation Act. 

Because mediation is not a trial, the advocacy skills are quite different.  And it is important to consider who your audience is.  Many people think the mediator is the focus, but that is far from true.  The audience is the other side or party – those with whom you seek to find common ground. The process necessitates the free flow of information. While each side necessarily must present their view in the light most favorable to their cause, mediation is not an adversarial process. In a trial, each side takes a position, and everything said and done is intended to further that position to the detriment of the other side. In mediation, the goal is to reach a common solution, not to convince a jury to find your way.

In litigation, some attorneys find it beneficial to hold back information in order to maximize its effect when offered at trial.  Mediations function best when each side has made a meaningful effort to educate the other side.  Mediations function poorly when each side relies exclusively on its own claims or defenses.  Unlike a trial, there is not a winner and a loser in mediation; a successful mediation results in both sides achieving what they need to satisfactorily resolve the dispute.

Myth 2: Mediators Decide the Outcome: There is a misconception that mediators act as judges and impose solutions. Mediators are neutral facilitators who assist parties in finding their own resolutions. The outcome is in the hands of the disputing parties; the mediator’s role is to guide the process.

Mediation is not arbitration.  The mediator is a facilitator, not a decider.  The mediator does not make factual or legal determinations.  Unless the parties seek an evaluative mediator, in most instances, the mediator doesn’t even make recommendations, aside from offering suggestions for conducting the negotiations themselves.  And, because mediations are most effective when there is a free flow of information, the mediator may encourage the parties to offer information that might prove useful in altering the view of the other side.  However, the mediator must be careful not to reveal any confidences that a party does not want to share. 

 And, of course, counsel is very important to the process. The attorney knows the case and is still the advocate for the client.  The mediator’s job is not to ensure that a party’s rights or interests are protected.  In fact, the parties are entitled to make decisions that are not in their best interest.

Myth 3: All Mediators Are the Same: Mediators generally go through a similar training process; however, each person brings to the professional the benefit of their experiences prior to becoming a mediator and outside of their mediation practice.  A judge or former judge may be beneficial for a variety of reasons, while an active attorney from a reputable law firm may be preferable in another.  It is important to match the dispute at hand with the experience and skills of the mediator.  We recognize that not every person is the right juror to hear a case, and the same is true for mediators.  Mediators have subject matter expertise just like attorneys do. 

Beyond the expertise, it is also important to consider the style of mediator that will work best for any given dispute.  Some parties really need to have an evaluative process and will ask that the mediator provide input to the issues raised.  Others will respond best to a truly facilitative mediator; but in either case the mediator must do more than simply pass numbers back and forth. 

Myth 4: Mediation Does Not Require Preparation: This is probably the most common mediation myth and a dangerous one at that.  Mediation can be hard work – both for the mediator and the parties.  Because mediation is most successful when information and goals for resolution are openly shared, it is important for the mediator to be educated about the facts of the case and the issues in dispute.  Counsel is integral to this process because the attorney generally knows the case better than anyone.  A good mediation statement takes time.  It should provide the necessary information without being too adversarial.  Decisions about whether and how to make a presentation at the opening session need to be considered well in advance, with the understanding that the presentation will be very different from an opening statement at trial. 

On the flip side, the mediator needs to take the time to digest material that is provided ahead of time, often reviewing actual pleadings filed in the case and even testimony or other evidence that may be offered at trail in order to gain an appreciation for the sticking points in the process. 

Perhaps most importantly, the parties need to be prepared for the process.  It is important that they understand the purpose of the mediation, the format for the proceeding and the rules.  The discussion of what an acceptable resolution looks like should not happen for the first time during the mediation. 

Myth 5: Mediation Always Leads to Compromise: A common belief is that mediation necessitates compromising or giving up one’s position entirely. In reality, mediation focuses on finding common ground and mutually beneficial solutions. It’s about exploring options that address each party’s interests, not just compromising positions.

There are several goals for mediation, including but not limited to reaching a settlement.  Even if the case does not resolve at mediation, the process is beneficial in other ways.  It can narrow the dispute and allow the parties to identify which issues remain and potentially facilitate later efforts to resolve the case.

In some instances, the process may merely affirm that the parties’ respective positions are so different and their views on value so far apart that the case is not going to settle, so that energy can then be placed on effective trial preparation.

Myth 6: Mediation is Time-Consuming and Ineffective: Some believe that mediation takes too long and rarely produces satisfactory outcomes. However, compared to litigation, mediation tends to be much quicker and much more cost-effective. Others might be concerned that mediation will prolong the process or delay a case getting to trial.  It need not.  If it is an adjunct to litigation it may make a trial unnecessary, but will not be a barrier to trial should one be necessary.  And a mediation conducted prior to litigation, when successful, will avoid the need for litigation outright. 

While not all mediations lead to an agreement, when an agreement is reached, it happens only when all parties are satisfied that the result is right for them. 

Myth 7: Offering to Mediate Shows Weakness in Your Case: Some litigants might see mediation as a sign of vulnerability or a compromise of their legal position, fearing it might weaken their case.  But, as noted, there are many reasons for mediating a case.  One may very well be a desire not to go to court, but that need not be and probably should not be shared.  The parties may both desire to resolve the case short of trial, but their efforts to negotiate directly have nevertheless not been successful.  All negotiations are not equal. Where direct negotiation often involves a lot of posturing on both sides, at mediation the facilitator helps the parties view their positions in a less adversarial manner.  The goal is to bring the parties together; not to achieve a win by either side. 

Some believe that mediation is a weaker form of conflict resolution compared to litigation because it doesn’t involve a formal judgment and is not legally binding. However, mediation often results in more satisfactory outcomes for all parties involved for the very reason that it is not a decision made by others.  It allows for a resolution that contemplates preserving relationships and allows for more creative solutions.  “Mediation seeks a mutually acceptable result, regardless of each party’s preference for something else.” 

Litigants might be reluctant to participate in mediation for several reasons, including a lack of understanding of what mediation entails or how it can benefit them in resolving the dispute.  Certainly, some individuals might believe that a courtroom trial is the only way to obtain justice or a fair outcome, preferring an adversarial process.  It is important to stress the overall success rate for mediation and how it allows for creative solutions that address the unique interests of the parties, which, unfortunately, a trial simply does not afford.  

Finding an experienced mediator to serve as a neutral third party and assist with legal issues of all types, including personal injury, medical malpractice, professional negligence, product liability, premises liability, civil rights, and family law matters (divorce mediation and child support) is critical to your success! Reach out to book your next mediation appointment with Henning Mediation and see why Henning is the gold standard in dispute resolution.