What’s the Mediation? A confidential process
The basic definition of mediation is that the third party neutral (the Mediator) discusses the dispute with the parties to facilitate an agreement between the parties to resolve the dispute. Whatever is discussed at the mediation, is confidential. If an agreement is reached, it should be in writing.
So, we can say that Mediation is a confidential process. Virtually all the different court-annexed mediation programs and provider organizations contains rules providing for confidentiality. The only mediation statute in New York State providing for confidentiality is afforded to mediations as the community dispute resolutions centers.
Maintaing confidentiality encourages the parties to freely speak out, and say what they mean and what they want. The mediation session is considered the equivalent of a settlement discussion; thus, whatever is said or admitted or provided at the mediation, cannot be used as evidence in a court or other administrative proceeding, and is thus inadmissible.
The other side would then provide its explanation of the dispute and why it believes it is right, and what is important. This is usually done by the attorney and the client. Again, the attorneys try to encourage the client to speak and provide explanations. It is crucial that there be a rapresentative present in person on behalf of each client who has full settlement authority. Mediation without a client ends up being a meaningless meeting and very little gets accomplished.
By having the parties present during the mediation, the parties obtain a better understanding of the other parties’ interests and positions; they can determine for themselves whether there is true sicerity. They may not necessarily agree with the other side, but at least they will have a better understanding between the parties is very valutable, particularly if they are going to have continuing business relationships.
The pro se plaintiff or defendant in a complicated litigation in court is at a tremendous disadvantage. Even, though mediation is more informal, if the dispute involves a major or complicated dispute, the pro se person is likewise at a major disadvantage. Thus, the mediator should encourage the pro se person to obtain legal representation.
Why mediation works after negotiation fail
The experience shows that mediation works after negotiation fail. What’s the reason?
Certainly, mediation permit each party (and his or her attorney) to communicate directly to the other party. Other reason is that a mediator can let the parties vent their feelings, put emotion behind them, focus on their real needs and interests and then make a rational cost/benefit and risk/reward analysis of the difference between litigating and settling.
So, a mediator can be an “agent of reality” to help the parties and their advocates overcome “advocacy bias” and other cognitive barriers to objective risk analysis. There are three features:
Advocates may have advocacy bias, confirmatory bias and a tendency to fall in love with their arguments, and parties have a tendency to believe what they want to believe;
A mediator has more credibility than the opposing party in pointing out the weaknesses in each party’s case so as to assist each party in making an objective risk/ reward and cost/benefit analysis of its litigation alternative;
A mediator can help the parties focus on their tolerance for or aversion to risk.