Diane D. Hitzemann, Mediator and Collaborative Attorney

Mediation

Voluntary and Confidential Process

Mediation is a voluntary process where the parties and mediator together decide the rules for the mediation. The participants can stop the mediation process at any time and no one can be forced to accept an outcome. The mediator, who may or may not be a lawyer, functions as a neutral facilitator and is not an advocate for either party. A mediator does not give legal advice -- that is the role of each party’s attorney. During mediation parties can talk freely about what is important to them, because their disclosures and/or admissions are confidential outside the context of the mediation; the existence and outcome of mediation are confidential. The mediator is not subject to subpoena if the case proceeds to court, and thus cannot be made a witness.

Parties Retain Control for Mutual Gains

Parties retain control over the outcome of the dispute and can develop creative solutions that go beyond what the law can decide. They can be guided by personal or business interests-what is important to them outside of the factual dispute and applicable law, and the outcome can be oriented to the future of the relationship rather than to past conduct.

In a mediation process parties are more likely to achieve mutual gains than the zero-sum results of most litigation and arbitration proceedings. However, parties always retain the right to due process of law. Their attorneys can advise them on the law and judicial alternatives as advocates and legal counsel.

Responsibilities of Parties

  • Share all relevant information
  • Assert to the mediator their understanding of the situation and their priorities
  • Listen to each other’s views in attempt to understand differences
  • Determine the weight and relevance of the legal standard to the choices they make
  • Work together in a collaborative process
  • Treat all participants in the process in a respectful manner
  • Assume responsibility for decisions
  • Resort to the traditional system if all else fails

Responsibilities of the Mediator

  • Helps to identify issues in dispute
  • Clarifies what the parties are saying
  • Facilitates understanding of different points of view.
  • Serves as a resource for information
  • Helps explore and develop possible solutions
  • Remains unbiased as to outcome
  • Assumes that the law neither determines nor is irrelevant to outcome-that parties can be informed without being controlled by the law

Acceptable Solutions

Mediation is not an adversarial process and is less likely to escalate conflict or intensify hostility than litigation or arbitration. By minimizing the potentially traumatic emotional and psychological effects of the adversarial process, parties may safeguard their future relationship with better communication. Mediated solutions provide greater satisfaction for parties than externally imposed solutions and avoid the threat of external control associated with the enforcement of litigation and arbitration outcomes.