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Mediation is the extension or elaboration of the negotiation process that involves the
intervention of an acceptable third party who has no authoritative
decision-making power. It leaves the decision-making power primarily with the
parties. Mediation is a voluntary process and, subject to certain limitations,
it is private and confidential. The mediator is neutral; he or she has no
interest in the outcome. The mediator is impartial; he or she does not advocate
or represent the interests of either party. While many mediators are lawyers,
they do not provide legal advice to either or both parties. They may provide
general legal information only.
Mediators do not make final and binding decisions for parties on the issues in dispute. Rather,
they facilitate their negotiations.
The process begins with the initial contact of the mediator with the parties with or without their
lawyers. He or she assists them in determining if mediation is an appropriate process for them. The
mediator collects and analyzes relevant data about the people, dynamics, and substance of the
conflict. He or she then designs a detailed plan for mediation. Finally, the mediator prepares the parties
for their participation in this process.
At the opening of the actual mediation, the mediator reviews the matters discussed with each party
individually in pre-mediation intake and screening, provides an overview of the process, and suggests
appropriate behavioural guidelines. The parties sign the Agreement to Mediate. The mediator invites each
party to describe the problem that brought him or her to mediation. From these opening statements, the
mediator helps the parties identify the issues in dispute and set the agenda for their mediation.
The mediator facilitates an interest-based negotiation process. He or she probes for underlying
interests. He or she then helps the parties generate creative options. After they have created a sufficient
list, the mediator assists them in assessing the extent to which those options satisfy their common and
individual interests.
Upon the negotiation of a tentative settlement, the mediator will usually prepare a memorandum of
understanding embodying the terms of the agreement. The mediator will recommend that the parties review
their understanding of the proposed settlement with their lawyers who will provide independent legal advice
prior to making their final commitment and signing a binding and legally enforceable agreement.
Members of Alternatives To Court approach mediation as facilitators employing an interest based resolution
model. By prior agreement a rights based approach may be employed in appropriate circumstances.
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