What is Mediation?
Mediation is a confidential process in which an objective party (the mediator) works with the parties to a dispute to come up with a mutually agreeable solution to the problem at hand. If the parties reach an agreement on how to proceed, the mediator may have the parties outline the agreement in writing.
Mediation is not a trial. Neither a jury nor the mediator will issue a judgment or finding of fact. Mediation is not binding. Agreements resulting from mediations are typically not enforceable in court.
What are the benefits of Mediation?
With mediation, the parties to the dispute maintain the power to choose their own solution. Should the dispute continue and wind up in the court system a judge or jury would determine what happens. If the case is arbitrated, an arbitrator will make the determination. Mediation keeps the power to choose how the parties proceed with those most interested in the outcome and therefore most invested in coming up with creative solutions.
Compared to bringing a court case (i.e. litigation) or using other alternative dispute resolution techniques such as arbitration; mediation is relatively cheap and much less time consuming. Most courts require that cases be mediated before they are scheduled for trial. Early mediation of some disputes can result in significant savings of legal expenses.
Mediation is confidential. Most mediators have all the parties to a dispute sign a confidentiality agreement at the beginning of the mediation. Typically the confidentiality agreement states that none of the parties will reveal any of the information discussed during the mediation.
Who are Mediators?
Mediators are neutral third parties. It is important that the mediator not have a relationship with any party that could impact the mediator’s ability to remain objective. Before mediation begins it is common for the mediator to inquire whether either party knows the mediator or has any reason to believe that the mediator is not an objective party. This does not mean that the mediator has to be someone none of the parties has ever met before, but rather that the mediator does not have a pre-existing relationship with one of the parties that might make the mediator biased.
Some mediators are lawyers or former judges, but there is no requirement that mediators have any legal training. Most mediators have taken a basic mediation course (usually a 40-hour training) focused on helping the parties to a mediation identify their interests and come up with solutions that address the parties’ interests.
Large cities or counties may have a dispute resolution center where conference rooms and mediators are available most business days.
When might a nonprofit benefit from mediation?
Mediation can be useful in just about any situation where parties are deadlocked. This is true for boards of directors, officers, employees, volunteers, or any combination of the same. A nonprofit might benefit from mediation if the director and one or more board members have fundamentally different ideas for how the nonprofit will be run in the future or who will run the nonprofit in the future or disputes between employees or with contractors used for fundraising.
How long does mediation take? What should I expect?
Mediations are usually scheduled for one-half or one full work day (8:00-5:00). The mediator usually decides how long the mediation will be depending on the complexity of the issues, the number of parties involved, and other factors.
Mediation tactics and format vary from mediator to mediator. You can expect to be seated in a room with a table and to visit with the mediator. Sometimes mediators like to separate the parties into multiple rooms then bring everyone together to brainstorm solutions. If the parties are capable of being civil in a room together, and collaborate well, the entire mediation could be held in a single room with everyone present. If the parties cannot get along the entire mediation may take place with the parties in separate rooms with the mediator bouncing back and forth.
Does a nonprofit need a lawyer at mediation?
It depends. If it seems likely that the dispute could result in a lawsuit if an agreement is not reached you may want to have a lawyer present. If the opposing party to a dispute is bringing an attorney, you may want to have a lawyer present. If the nonprofit has a leader who will be representing the nonprofit at mediation and that leader is comfortable without an attorney present it may be more cost effective to consult with an attorney before mediation then make sure the mediation is scheduled for a day on which your attorney will be available by phone.
When should parties mediate?
If parties are deadlocked on an issue that has them at a standstill, it is probably time to try mediation. If litigation seems imminent it is definitely time to mediate. In some cases early mediation can resolve issues that would otherwise become bigger problems. If you think you have an issue that would benefit from mediation determine if the other party will agree to mediate, find a mediator you both agree on, and schedule mediation.