Mediation is an informal, confidential process where a neutral person, called a mediator, encourages and facilitates resolving a case without recommending what it should be.
Unlike a judge or an arbitrator, who decides for the parties how a dispute will be resolved, a mediator or conciliator helps the parties reach their own voluntary agreement that’s acceptable to both parties.
The mediator’s role may include:
- Helping the parties identify the issues
- Assessing and reviewing the relative strengths and weaknesses of their case
- Determining common interests
- Fostering joint problem-solving
- Exploring settlement options
- Finalizing a settlement agreement
During all Housing Court mediations, the parties have the authority to make a decision about the case:
- Unless and until an agreement is made and approved by the judge
- If no agreement is reached, until one or both parties end the mediation process and bring the case to court to be determined by a judge.
Advantages of mediation
It almost always takes less time to mediate a dispute than it does to try a case, in question-and-answer form, with objections heard and ruled on in accordance with the law of evidence, and with a lot of additional time necessary if there is prior discovery, an interpreter, a jury trial, or an appeal. The parties are also free to schedule their own mediation at their early convenience, instead of waiting for trial after the summons and complaint are served.
All communications in mediation are confidential, and neither the mediator's work product nor the participants' statements made in mediation about the subject matter can be disclosed later or admitted into evidence if a trial is held. Private sessions between a single party and the mediator are even more confidential, because they aren’t even shared with the other party without permission. The only record of a mediation is the written agreement reached by the parties.
Mediation is an opportunity for parties to resolve their own dispute rather than turning over control of the decision process to the judge. Also, while the judge has to make a decision on the legal evidence following the legal rules applicable to the case, the parties can reach settlement terms tailored to satisfy their own individual interests and needs.
Studies have shown that mediation generally results in a high level of participant satisfaction. And, parties often find the process useful, even if they only reach a partial resolution rather than a complete one, and even if the parties are only able to "winnow away" the unimportant and undisputed issues from the issues that must be tried.
Studies have also shown that people are more likely to accept and follow their own decisions rather than decisions others make for them. Therefore, compared to adjudicated resolutions, mediated agreements are more durable, and the compliance rate is very high.
Once approved and signed by the judge, a mediated agreement may become a judgment or court order with the same legal effect as if the judge decided the case.
Agreements for judgment, unlike court-ordered judgments, can’t be appealed. Like other judgments, agreements for judgment can be vacated or modified only where the parties both agree to it, or there are changed, unexpected circumstances or other unusual events.
Mediation is a voluntary process, and cases are resolved by mediation only if both parties agree. If, after reasonable effort, the parties can’t solve their dispute through mediation, they still have the right to trial, and the judge will hear and decide the case.