Far too often however, parties to a lawsuit will opt to mediate at the outset of a lawsuit in a well meaning attempt to resolve the matter before significant costs are incurred. Unfortunately what frequently happens is that the parties, or possibly their insurers or attorneys, do not have enough information to make a reasonable evaluation of the risk of the case, and are therefore unwilling to seriously consider resolving the matter. The consequences of participating in a mediation which is conducted too early without a real committment to resolution is the parties become more entrenched in their positions because they have wasted their time and money. Trying to reach agreement by phone, fax or letter is very difficult because the parties have to set their positions out in such a way that it is difficult to back away from them. The mediation brings the parties together with a neutral third person who will moderate and facilitate the process.
Mediators do many things.
Building and preserving a sense of trust is one of a mediators most important roles. The mediator serves as a sounding board, helps the parties identify issues and interests which need to be met, acknowledges parties feelings, plays devil's advocate, keeps the process moving and much more. The question of whether a mediation is binding or not creates a lot of confusion. Mediation, by its nature is confidential which means, among other things, that if no agreement is reached, it is as if nothing ever happened. The party's respective rights are not affected because the mediation took place and did not result in an agreement.