Mediation is an ancient, practical art with roots in Greek and Roman civilizations. In mediation, a neutral third person helps parties find a mutually agreeable solution to a dispute. The mediator facilitates communication, evaluates the relative strengths and weaknesses of the claims and defenses, and keeps negotiations on a productive and creative track. The parties retain control over the ultimate outcome.
Attorneys play a key role by submitting advance statements (see "Guidelines for Pre-Mediation Statements" below) which helps the mediator determine whether a "facilitative" or "evaluative" mediation is better suited to the issues and dynamics involved in the case. In facilitative mediations, the mediator's primary function is to restore communication, help identify relevant information, allow parties to vent, transmit offers and demands, and assist the parties in identifying settlement options. In the end, the outcome remains almost entirely in the hands of the parties and counsel.
In evaluative mediations, the parties may seek the views of the mediator on the likely trial outcome and/or an appropriate settlement range based upon the legal and factual positions of the parties. This type of mediation is often used for more difficult or complex cases, or where the gap between the parties is large.