As the cost of litigation rise and courts become more backlogged , some people are seeking an alternative method for resolving their disputes. One such alternative is mediation.
What is mediation, and what exactly do mediators do? This article aims to answer these questions. It also explores how to become a mediator, earning potential, job prospects, and how mediators make a difference at both an individual and societal level.
Mediation Definition
Mediation is a voluntary and informal method of alternative dispute resolution (ADR) in which a neutral third party, known as the mediator, assists disputing parties in reaching a mutually acceptable agreement. The goal of mediation is to facilitate communication, promote understanding, and guide the parties toward finding their own resolution to the conflict. The role of a mediator is not to be a decision-maker who imposes a solution; instead, the mediator helps the parties craft their own resolution.
Mediation vs arbitration
While mediation and arbitration are both alternative dispute resolution (ADR) methods, each has distinct characteristics.
1. Nature of the process
- Mediation: Mediation is a voluntary and informal process where a neutral third party, known as the mediator, facilitates communication and negotiation between disputing parties.
- Arbitration: Arbitration is a more formal process where a neutral third party, known as the arbitrator, is appointed to make a binding decision on the dispute.
2. Decision-making authority
- Mediation: The mediator has no decision-making authority. The resolution of the dispute depends on the parties’ ability to reach a consensus voluntarily.
- Arbitration: The arbitrator has the authority to make a final and binding decision on the dispute. The decision is typically based on evidence presented by the parties during a formal hearing.
3. Control over the process
- Mediation: Parties and attorneys are active participants.
- Arbitration: The arbitrator has more control over the process, including setting the rules, conducting the hearing, and making the final decision. The parties have less influence on the decision-making procedure.
4. Formality
- Mediation: The process is generally less formal, and the atmosphere is collaborative. Parties may choose to have legal representation, but it is not mandatory.
- Arbitration: The process is more formal, resembling a legal proceeding. Parties may present evidence, call witnesses, and be represented by attorneys.
5. Confidentiality
- Mediation: Discussions and information shared during mediation are typically confidential. This encourages open communication and allows parties to explore potential solutions without fear of their statements being used against them.
- Arbitration: While arbitration proceedings might be confidential, the final award is often disclosed to the parties involved and may be subject to enforcement in a court of law.
6. Timeline
- Mediation: The timeline for mediation is often more flexible and can often be completed relatively quickly, depending on the complexity of the issues and the parties’ willingness to negotiate.
- Arbitration: The timeline for arbitration is more structured, resembling a formal legal proceeding with set deadlines for presenting evidence, conducting hearings, and rendering a decision.
7. Cost
- Mediation: Typically less than arbitration or litigation.
- Arbitration: More expensive than mediation, but less expensive than traditional litigation.
Mediation vs litigation
Litigation refers to the process of resolving disputes or conflicts through the court system. It involves the use of legal procedures and formal legal proceedings to determine the rights and obligations of the parties involved. Litigation covers a wide range of legal issues, including civil disputes, criminal cases, and administrative matters. The parties in a litigation process are often referred to as the plaintiff (the party initiating the legal action) and the defendant (the party being sued or charged).
There are many differences between the two conflict resolution pathways.
1. Nature of the process
- Litigation: Litigation is an adversarial and formal legal process that involves taking a dispute to court. It is characterized by legal procedures, formal pleadings, and court hearings. The resolution is determined by a judge or jury based on applicable laws and legal principles.
- Mediation: Mediation is a voluntary and informal process where a neutral third party, known as the mediator, facilitates communication and negotiation between the parties. The mediator does not make decisions but assists the parties in reaching a mutually acceptable agreement.
2. Decision-making authority
- Litigation: In litigation, a judge or jury has the authority to make a binding decision on the dispute. The parties present their cases, and the decision is based on the interpretation of laws and legal precedent.
- Mediation: The mediator has no decision-making authority. The resolution depends on the parties’ ability to reach a voluntary agreement. The mediator facilitates communication and assists in finding common ground.
3. Control over the process
- Litigation: The litigation process is controlled by legal rules and procedures. The court sets deadlines, determines the scope of discovery, and governs the overall progress of the case.
- Mediation: Parties have more control over the mediation process. They actively participate in discussions, decide the agenda, and have the flexibility to explore creative solutions outside the legal framework.
4. Formality
- Litigation: Litigation is a formal legal process involving court filings, legal representation, rules of evidence, and courtroom procedures. The atmosphere is adversarial, and the focus is on legal arguments.
- Mediation: The process is more formal, resembling a legal proceeding. Parties may present evidence, call witnesses, and be represented by attorneys.
5. Confidentiality
- Litigation: Litigation is generally a public process, and court proceedings, including hearings and trials, are open to the public unless specific circumstances warrant confidentiality (e.g., certain family court matters or sealed proceedings).
- Mediation: Mediation, in contrast, is a confidential process. The discussions, communications, and information shared during mediation are typically protected from disclosure to third parties.
6. Timeline
- Litigation: Litigation is often a time-consuming process, involving multiple stages, court appearances, legal motions, and delays. There may be little or no flexibility in scheduling for participants.
- Mediation: Mediation is designed to be a more expeditious method of dispute resolution, as well as more flexible.
7. Cost
- Litigation: Litigation often involves significant legal fees, as parties typically hire attorneys to represent them. Attorneys charge for their time, including court appearances, document preparation, legal research, and communication with clients. In 2022, the median pay was $65.26 per hour.1
- Mediation: The mediation process is typically much less expensive than traditional litigation. In 2022, the median pay for mediators was not even half of a lawyer’s fees, at $30.78 per hour.2
How to Become a Mediator
Becoming a mediator involves a combination of education, training, and practical experience. Here are the general steps to becoming a mediator.
Mediator training
Required training for mediators varies by state. Some states require mediators to have a bachelor’s degree; several require a master’s degree or higher. Others might only require mediators to complete a mediation training program, which could range anywhere from 20–40 hours. State requirements might also vary depending on the area of practice. Make sure to check your state’s requirements before embarking on an education path.
Keep in mind, however, that having a degree could benefit you financially and with regard to job security—and the higher the degree, the better.3
| Degree Level | Median Usual Weekly earnings | Unemployment rate |
|---|---|---|
| HS Diploma | $853 | 4.0% |
| Associate degree | $1,005 | 2.7% |
| Bachelor’s degree | $1,432 | 2.2% |
| Master’s degree | $1,661 | 1.9% |
Experience
Once again, experience requirements are specified by states. However, mediators might be required to have completed a specified number of under the supervision of an experienced mediator.
In addition, in some types of mediation, related professional experience may be required. For example, divorce or family mediators might be required to have counseling experience.
Licenses and certifications
There is no national license for mediators in the United States—once again, each state has its own requirements. Some might require a state license, while others state certification. Requirements might also vary according to area of practice.
What Is a Mediator?
The role of a mediator is to facilitate communication and discussion between disputing parties. The mediator acts as a neutral, impartial third party, objectively listening to the dispute and assisting parties to be candid and open to options they might not have considered. Mediators do not decide outcomes—rather, they guide the parties toward a mutually acceptable solution.
There are three basic types, or styles, of mediation: Transformative, facilitative, and evaluative.
Evaluative mediation: Evaluative mediation involves a more interventionist approach, where the mediator exerts the most control. Mediators may provide assessments, opinions, or evaluations of the case. They may offer guidance on legal issues, potential outcomes in court, or the strengths and weaknesses of each party’s position. The emphasis is on reaching a settlement, and the mediator may actively suggest potential settlement terms. This type of mediation may be particularly useful when there is an uneven balance of power between the parties.
Facilitative mediation: In this style of mediation, the mediator exerts a medium amount of control. The mediator essentially controls the process of mediation, but the outcome is controlled by the disputing parties. The mediator might ask questions to clarify issues but will refrain from giving their opinion.
Transformative mediation: Transformative mediation gives the parties the most control. The goal is to transform the relationship between the parties, turning it into one of strength and collaboration. The mediator facilitates communication and guides the parties toward resolution. They encourage parties to acknowledge each other’s position with empathy.
What do mediators do on the job?
The mediation process consists of a number of basic steps , during which the responsibilities of the mediator may differ somewhat.
- Mediators start by setting up appointments for the parties to meet in a neutral location
- The meeting starts with the mediator making introductory remarks. They might explain the mediation process and the guidelines parties need to follow. They also typically give a brief summary of the issues.
- Next, the mediator asks each party to present their side of the dispute without interruption.
- Then comes the joint discussion. The mediator facilitates communication, clarifies issues, and ensures that the concerns and needs of both parties are addressed.
- Following the joint discussion, the mediator might meet individually with each party. These meetings are confidential, which could encourage each party to share new information they were hesitant to discuss in the joint discussion.
- The parties come together again, and the negotiation process begins. During negotiation, the mediator facilitates communication, clarifies issues, and guides participants to mutual agreement.
- If the parties come to an agreement, the mediator might write up a draft of the agreement. If they don’t, the mediator might set up another meeting or consult with one of the parties individually.
Mediation jobs
Mediators might focus on specific areas of practice. Examples include:
- Divorce mediation
- Contracts
- Healthcare
- Real estate
- Landlord and tenant
- Entertainment
- Employment
Following are descriptions of several of these types.
Divorce mediation
Divorce mediation is a process in which a neutral mediator assists divorcing couples in reaching agreements on various aspects of their divorce. The goal of divorce mediation is to facilitate open communication, promote collaboration, and help the parties work together to create a mutually acceptable divorce settlement. This alternative dispute resolution method is an option for couples who prefer to avoid the adversarial nature of traditional litigation.
Divorce mediation addresses a wide range of issues related to the divorce, including:
- Division of marital assets and debts
- Child custody
- Child support
- Spousal support (alimony)
- Any other relevant issues specific to the couple’s situation
To become a divorce mediator you would typically enroll in a training course that covers not only the fundamentals of mediation but also topics such as divorce, separation, and child custody laws and procedures. Some states might also require you to have experience in counseling or mental health professions.
Landlord and tenant mediation
Landlord-tenant mediation is a form of dispute resolution designed to help landlords and tenants resolve conflicts and disputes related to rental agreements. Some of the issues that might be disputed include:
- Tenants who don’t pay rent
- Tenants who cause property damage
- Landlords who don’t make necessary property repairs or
- Landlords who hold back part of a tenant’s deposit when they leave
Landlord and tenant mediators should be familiar with local codes and state laws concerning rental agreements.
Employment mediation
Employment mediation might be used for employee-employer conflicts, disputes between managers and those they manage, or disagreements between employees. Types of disputes that mediation could help to resolve include:
- Employment discrimination
- Workplace harassment
- Wage/overtime issues
- Termination issues
- Disagreements between employees over issues such as workload
Mediator salary and job outlook
According to the Bureau of Labor Statistics (BLS), the median annual wage for arbitrators, mediators, and conciliators was $64,030 in May 2022.2 However, in some industries and geographical locations, earnings may be higher. The top-paying industries in 2022 were:4
| Industry | Annual mean wage |
| General Medical and Surgical Hospitals | $144,690 |
| Federal Executive Branch (OEWS Designation) | $141,980 |
| Colleges, Universities, and Professional Schools | $102,320 |
| Employment Services | $97,480 |
| Local Government, excluding schools and hospitals (OEWS Designation) | $92,110 |
The top-paying states for arbitrators, mediators, and conciliators in 2022 were:4
| State | Annual mean wage |
|---|---|
| District of Columbia | $119,280 |
| Massachusetts | $83,440 |
| Michigan | $81,140 |
| New Mexico | $78,040 |
| Connecticut | $77,250 |
The number of jobs for arbitrators, mediators, and conciliators is projected to grow 5 percent from 2022 to 2032, which is faster than the average for all occupations.2 Once again, demand is higher in certain industries and geographical areas.
Industries with the highest levels of employment for arbitrators, mediators, and conciliators in 2022 were:
- Legal Services
- State Government, excluding schools and hospitals (OEWS Designation)
- Local Government, excluding schools and hospitals (OEWS Designation)
- Other Professional, Scientific, and Technical Services
- Individual and Family Services
States with the highest levels of employment for arbitrators, mediators, and conciliators in 2022 were:
- Texas
- Michigan
- Pennsylvania
- Wisconsin
- Arizona
How Mediators Make a Difference
Mediators make a difference in various ways by contributing to the resolution of disputes and conflicts. Their neutral and facilitative role has a positive impact on the parties involved and the broader community.
Mediators could help people avoid the high costs of lawyers and court fees. And, perhaps more importantly, they may provide people who can’t afford to pay such fees at all an avenue for resolving their issues which otherwise might not be available to them.
In facilitating open and respectful communication, mediators often help people resolve disputes without destroying relationships. There are no “prosecutors” and “defendants”—terms that inherently suggest one person is right and the other wrong. Instead, both parties are treated equally and fairly, which could help reduce bitterness and preserve the connections between the parties.
The impact of mediators might go beyond resolving a particular dispute. By sharing tools and strategies, mediators could empower individuals to navigate future conflicts more effectively in their personal and professional lives.
Mediators could also make a difference in the broader community . For example, mediators might assist school administrators, parents, and students resolve racial conflict. They might work with law enforcement to improve relationships between police and communities. Or, they might address hate crimes and bias incidents by facilitating agreements between civil rights organizations, religious organizations, and law enforcement.
Conclusion
In a world where conflicts are inevitable, mediators offer an avenue for people to resolve disputes respectfully and collaboratively with less stress and bitterness. They level the playing field for people who can’t afford litigation and help people resolve disputes more quickly. In addition to education, mediators needs to have good interpersonal, listening, and critical-thinking skills. If that sounds like you, and you are seeking a career in which you could make a difference, becoming a mediator might be perfect for you.
Sources:
1. https://www.bls.gov/ooh/legal/lawyers.htm
2. https://www.bls.gov/ooh/legal/arbitrators-mediators-and-conciliators.htm#tab-1
3. https://www.bls.gov/emp/chart-unemployment-earnings-education.htm
4. https://www.bls.gov/oes/current/oes231022.htm#st