California Rules of Court, Rule 1620(a) defines “Mediation” as follows:
‘ “Mediation” means a process in which a neutral person or persons facilitates communication between
the disputants to assist them in reaching a mutually acceptable agreement.’
Unlike trial or arbitration, Mediation allows the parties themselves to make all the decisions. The Mediator has no decision-making powers whatever, and serves only to help the parties themselves to reach a mutually acceptable settlement.
Typically, Mediation is scheduled by the parties according to their convenience, rather than being tied to a rigid court calendar. The Mediation session is generally relaxed and informal, with the parties able to fully present their versions of facts and their contentions, bordered only by civility and common sense. Participants and their counsel are able to voice their points of view freely; thus, having their “day in court” without having to go to trial. Experience tells us that most parties don’t really want a trial, but they do want to be heard, particularly by the other side.
Importantly, Mediation is entirely “off the record” and all statements and writings in Mediation are, by statute, expressly inadmissible in any later trial. Private, ex parte communications with the Mediator are permitted and are a necessary part of the Mediation. Such communications are confidential and cannot be disclosed by the Mediator without the express permission of the communicating party. All the foregoing allows for greater candor, more disclosure, and a greater chance for understanding and evaluating the other parties’ points of view.
Last but not least, Mediation is usually the least expense of all the dispute resolution methods.