Mediation isn't court — it's a communication process

Mediation is not a legal proceeding, and it can be a useful tool in a wide range of situations where people have differing views. Many of these situations, such as adult siblings who can't agree on the best way to care for aging parents, or coworkers trying to work through a disagreement, would never end up in court, but mediation can help. At its core, mediation is about helping people communicate clearly enough to find their own way forward — something courts, by design, aren't built to do.

You might be wondering: in situations that do involve a legal dispute, such as a child custody case or a lawsuit, what makes mediation different from court?

The biggest difference is that court and mediation ask two fundamentally different questions, which lead to different approaches. A court asks: under the law, who is right, and what is the legally correct outcome? A judge or jury hears the evidence, applies the rules, and issues a decision. That function is essential to how our society works, and some disputes need a judge or jury to make the decision. Outcomes are based on what the law allows, so judges and juries have few options and little flexibility to customize an outcome that meets the individual needs of every party involved.

Mediation asks a different question: what is the best solution for everyone involved, one that meets the needs of all the parties affected? The law might be a consideration, especially in disputes that are part of an existing court case (for example, a divorce or lawsuit) or that will require a judge's signature to be finalized, but it is not the only consideration. Even if the family code defaults to joint custody with standard possession and guideline child support, you can choose, or more often create, a completely different arrangement in mediation. (Don't worry if you don't know what any of those legal terms mean.)

My favorite metaphor for contrasting mediation and court is a restaurant menu. In court, the judge has one entrée from one restaurant to assign. In mediation, every dish on every menu in the entire state is available to choose from, and if none of those dishes works for your situation, one can be customized to fit.

The mediator doesn't decide anything. The people in the dispute do. The mediator's job is to manage the conversation so that those decisions can be made with clearer information and less friction.

How a mediation typically unfolds Every mediator works a little differently, but most sessions follow a recognizable shape. In my sessions, I speak with the parties, and with their attorneys when they have them, before the day of mediation. I then open the session by explaining the process, my role as a neutral party, the ground rules, and confidentiality. This is also where I make clear that I can't provide legal advice or predict how a court would rule. Each person then describes the situation in their own words, without interruption.

From there, I help the group identify what needs to be decided and what sits underneath each person's stated position. A position is "I want the house." An interest might be "I want stability for the kids," or "I need to know Mom's care is paid for." Positions tend to collide, while interests can often be compatible, or at least negotiable. The group then explores options and negotiates, which is where most of the time is spent. When people reach a resolution, it is usually put in writing. I walk through each of these steps in more detail in What to expect from mediation.

Why communication is the engine

People often find themselves unable to work through disagreements not because a solution doesn't exist, but because they have stopped being able to hear one another. It becomes the same argument day after day, or the same argument on a different topic. The disagreement takes on a life of its own, and at that point, each person is defending a position instead of expressing a need.

This is where a mediator can help. In my sessions, I slow the conversation down by asking open-ended questions, reframing charged statements, and keeping the focus on what happens next. I also manage the space and the energy in the room by ensuring that people speak to one another respectfully and, when needed, cooling things down, even separating the parties. These communication skills are the tools of the process. When people can hear one another, they tend to find more room to move than either expected.

Resolution belongs to the participants

Because the people in the room shape the outcome, agreements reached in mediation often fit their lives better than a decision made for them, and people tend to follow through on terms they helped write. Even when a court orders parties to attend mediation, no one can be required to reach an agreement, and any participant can decline terms that don't work for them. The mediator's responsibility is to the quality of the process. The result belongs to the people who built it.

That is the central difference. Court is a place where a decision is made for you. Mediation is a structured conversation in which you make the decision yourselves, and it doesn't require a lawsuit to get started.

Curious whether mediation could help with a situation you’re facing? Contact us to schedule a consultation. Do you have a question you’d like us to cover in a future blog post? Click here to send us your question, or schedule a phone consultation. If you need an immediate answer to your question, don’t wait—reach out now.