__Mediation is a confidential, informal process parties can voluntarily undertake in which a third party neutral assists them with negotiation to resolve their dispute.  The parties and their attorneys participate and are critical to the process of identifying needs and interests that can affect or define a workable outcome.
 
Mediation can occur before litigation is filed, early in litigation, or after necessary discovery and/or motion practice is completed.  Courts increasingly request (or require) that parties consider and attempt mediation because it has been used successfully so often as a tool to reach early settlement, saving the parties money and the court time, and empowering the parties to tailor a resolution that may meet their needs better than a black-and-white decision by the court.

Mediation may not be appropriate if one or more parties are certain they will win, feel it is important to have an “up or down” decision, or view the case as a matter of principle on which they cannot or will not bend.  It requires willingness to compromise and is more effective if approached with active effort to use the process.  Counsel’s role in mediation is a hybrid of litigation advocacy skills and client counseling skills, with less focus on making one’s best argument and more on (a) recognizing the potential downsides of not settling (including the possibility of losing in court) and (b) fashioning terms that meet the client’s needs but also can be acceptable to the other side and form the basis of an attractive or, at least, acceptable, settlement.

Sometimes, mediation may morph into arbitration or an evaluative form of mediation in which the parties ask the mediator to change hats from facilitating to arbitrating and make or recommend a decision.  Alternatively, sometimes a mediation results in an agreement to undertake certain steps and the parties ask the mediator to remain available to arbitrate any disputes arising out of that work.  In either case, it is important for the parties to discuss and agree explicitly on the changed role of the mediator.