What is mediation?

You’ve filed a complaint with the EEOC, OSHA, or the Texas Workforce Commission and were told that your case will be referred to mediation. Or your own employer’s internal grievance process includes mediation as an option. But what is mediation? Is it a good option?

Mediation is a form of alternative dispute resolution (ADR). ADR could mean many different things, but in short, it means settling disputes without having to litigate the case in court. Examples of ADR include mediation, arbitration, or even direct negotiations.

Mediation is done by hiring a mediator, who is a neutral third-party. The mediator’s role is to facilitate the negotiation process and help the parties reach a settlement. Importantly, a mediator is not a judge and does not decide who wins or loses. A good mediator will get the parties to resolve their differences and reach a compromise.

Most mediations usually start with an opening joint session, where all parties will be present together in one room with the mediator. The mediator will typically make a small speech and then each party will have an opportunity to make a brief statement. After that opening session, the parties will split into their own private rooms, and the mediator will go back and forth between those rooms. If the mediation results in a settlement, most mediators will memorialize the settlement in a brief written document that can be enforceable in court.

Mediation can occur either voluntarily or by  court order. But either way, it can be an effective way to resolve the case and end disputes. Voluntary mediation occurs where the parties to a dispute all agree to mediate the case on their own. In those cases, the case has a higher chance of getting resolved at mediation. A court-ordered mediation, as its name suggests, is compelled by the court. These days, almost every case filed in court has a mediation deadline upon which the parties must mediate their case.

Mediation v. arbitration: what is the difference?

Although they are both forms of ADR, mediation and arbitration are quite different in many ways. For example, a mediator’s role is completely different from that of an arbitrator. In mediation, the mediator is trying to get the case settled without making any decisions on the merits of the case; she simply facilitates the negotiation process. In arbitration, on the other hand, the arbitrator acts like a judge; she can render a judgment, award damages, and decide who wins and who loses.

Another difference is that in mediation, a resolution is achieved by agreement of the parties. There simply cannot be a resolution in mediation if the parties don’t agree to all terms. In arbitration, much like in court, there can be a winner and a loser, and a party can be compelled to pay whatever the arbitrator awards to the winning party.

Confidentiality of Mediation

Under Texas law, mediation is a strictly confidential process. For example, all matters during a mediation, including the conduct and demeanor of the parties and their counsel during the settlement process, are confidential and may never be disclosed to anyone, including the appointing court, if the mediation is court-ordered. This is especially important because mediation is designed to be an informal process, so the parties should feel comfortable and not worry about what they say or how they act. Additionally, even the mediator is bound by strict confidentiality obligations. For instance, if you tell the mediator something in confidence, she cannot share it with the other parties without your permission.

Is mediation worth it?

Absolutely. Pretty much any mediation, no matter who the mediator is or who the parties are, is better than no mediation. Mediation is a great way to resolve disputes because—unlike in court or even in arbitration—the parties have control over their own destinies. Remember, if you decide to take your chances in court or in arbitration, it will be someone else other than you who decides your case—like a judge, a jury, or an arbitrator. To learn more about the mediation process, contact a Dallas Employment Lawyer.

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