Because of the public's lack of understanding or, in may cases, misconception of what mediation is, its distinctiveness from other dispute resolution processes has gone unrecognized. Mediation is not arbitration. Arbitration is a more formal process which utilizes the traditional litigation design in that fixed rules govern the procedure and a third party decides the matter in controversy for the participants. Mediation, in contrast, is a flexible process which can be molded to fit the needs of each particular case. These mediators assist the parties in stating their points of view, determining the issues to be resolved, exploring options for resolution, negotiating, and reducing the settlement to writing if the parties are able to arrive at a resolution.
Mediators are the catalysts for the talks.
They make no decisions, issue no awards, make no recommendations to the judge, and do not determine who wins or loses. Mediators make decisions only about the process and the sequence of the discussions, not their substance. The role of the mediator is to listen, ask questions, and find common areas of agreement. The disputing parties decide the outcome of the talks, including whether or not to reach an agreement. Once mediation has been elected, all parties and at least one attorney for each represented party must participate in the mediation conference.