Eventually, it dawns on almost every party that it would be nice to settle the dispute before trial. Alternatives to Litigation and Trial Alternatives to litigation and trial are referred to as Alternative Dispute Resolution, or ADR, and include arbitration, court settlement conferences and mediation, among others. Mediation is a process in which a neutral, called a mediator, assists the parties in exploring issues in the case. The mediator facilitates discussion between counsel and parties, and guides the parties toward finding their own solutions to the dispute. In traditional mediation the mediator does not make a decision, a court reporter is not present, and there are no rules of evidence which control the process, with the exception of a rule concerning confidentiality.
Mediation is confidential.
Everything which is discussed during the mediation, and any documents prepared especially for the mediation cannot be used by any party outside of the mediation process, or in any portion of the litigation or trial. The purpose of confidentiality is to provide a setting in which the parties and attorneys can discuss the facts and issues openly, without fear that what has been said may be used against them outside of the mediation. The ability to speak openly leads to solutions and settlement. There are many forms of mediation. The most commonly used form is traditional mediation.