Topics on this page

• What is mediation?
• Why should I try mediation?
• When can mediation happen?
• Are there different types of mediation?
• Mediation: A Four-Part Video Series

What is Mediation? 

Mediation is a voluntary process in which a trained, impartial person (a "mediator") helps people in a dispute communicate, understand one another, and, if possible, reach an agreement that works for everyone involved.

Key Points About Mediation

• Mediation is voluntary.
  • If participants cannot come up with a solution that meets their needs, they cannot be forced to agree to anything. Agreements reached in mediation are only final when the participants are satisfied and willing to sign their names to the agreement.
• Mediation is confidential.
  • With a few exceptions, a mediator must keep what was discussed in mediation confidential Exceptions include:
    • allegations of child or elder abuse,
    • threats of serious bodily injury or death,
    • questions about the mediator's conduct, and
    • claims of fraud, duress, or misrepresentation in an agreement arising out of a mediation.
  • Parties can decide if they must keep the discussion confidential. Even some agreements can be kept confidential.
  • Mediators may not be called to testify in court about any mediation communications.
  • Read the Rule: Md. Rule 17-105
• Mediation lets the people in the dispute decide what works best for them.
  • Mediation revolves around the principle of self-determination. This means that the participants decide what solutions will work for them. The mediator does not make decisions about the dispute as a judge or provide legal advice. The mediator remains impartial throughout the process and works to provide each side an opportunity to say what’s important to them. The goal of mediation is to find creative, customized solutions that work for everyone.
• Mediation is not only for court cases.
  • While courts may refer parties in a case to mediation, anyone can use mediation as an alternative to going to court.
• Mediation is not therapy.
  • Mediation is not a substitute for therapy. While some mediators have counseling credentials the role of a mediation is different than that of a therapist. Therapy focuses on emotional support and mental health, while mediation is about resolving specific disputes. People who resolve problems through mediation often report that they feel better after having solved it themselves without someone else making the decision.
• Mediation is not practicing law.
  • While some mediators are attorneys, when an attorney acts as a mediator, they do not represent either party or offer legal advice. A mediator acts as a neutral third party. If an agreement comes out of your mediation and you wish to have it entered as part of a court order in an ongoing case or if you wish to have it enforced by a court, consider hiring an independent attorney to review the agreement on your behalf.

Why Should I Try Mediation?

• Mediation is voluntary.
  • While a court may order parties to attend mediation, the court cannot order them to reach an agreement. If the parties in court-ordered mediation do not reach an agreement, they can still proceed with their case in court.
• Mediation is confidential.
  • One of the drawbacks to going to court is that, by and large, everything said or submitted in connection with a lawsuit becomes part of public record. Only by special order can information be "sealed" from public view. So, whether you want to protect trade secrets or just to avoid washing your dirty laundry in public, mediation may be a better option than going to court.
• Mediation lets the people in the dispute decide what works best for them.  
  • Agreements made in mediation come from the participants, not the mediator. As such, you may have more control in mediation than in a court case. You may choose to sign a written agreement which can be enforced as a contract.
• Mediation can help you preserve relationships.
  • Does your dispute involve another person with whom you need to remain on good terms? Maybe your dispute involves family members, coworkers, business partners, your landlord, neighbors, or others with whom you have a continuing personal or business relationship. A huge advantage of mediation is its ability to get a dispute resolved without destroying a relationship. The adversarial nature of lawsuits can polarize and ultimately ruin relationships.
• Mediation is informal.
  • Unlike court, the atmosphere of mediation is informal. The parties and the mediator often meet around a table. There is no one recording the session or outsiders witnessing the discussion. You can wear whatever feels comfortable.
  • Unlike court, there are no formal mediation rules. The parties and mediator establish general rules at the beginning of a mediation session.
• Mediation is relatively quick.
  • Lawsuits are incredibly time-consuming. It is not uncommon for a court case to drag on for months or even years. In many cases, the parties can reach an agreement more quickly than if the matter was decided in formal court proceedings. While a court case must contend with a crowded court calendar, the only calendars you need to consider in mediation are yours, the other party's, and the mediator's.
• Mediation is cost effective.
  • Mediation may save you time and money as it is almost always cheaper than litigation. Some mediation services are free. Others are offered on a sliding scale. In other instances, the parties split the cost of a mediator. Since cost is largely a function of time, the quicker pace of mediation often means that the cost is lower than going to court.
• Mediations can assist with negotiations.
  • Sometimes you may hope to negotiate a fair settlement to a dispute but are just not able to get the attention of the other side to start the process. Or maybe you fear you have poor negotiating skills or are intimidated by the other party. Mediation may help in these kinds of situations. The mediator's presence can help provide a more comfortable environment for negotiations. The mediator can help you get your points across clearly to the other side. However, if there is a serious imbalance in power between you and the other side (such as a dispute with a large corporation), mediation may not be an appropriate way to resolve your dispute.
• Mediation can lead to more creativity.
  • Judges must follow certain rules when deciding cases. The types of relief (solutions) that a judge can order are limited. This isn't because judges can't think creatively. Because judges must follow the written law and what other judges have decided, solutions just aren't available. The flexibility to reach your own result is one of the greatest benefits of choosing mediation.
• Mediation can fill in the gap when your dispute does not raise a legal claim you can take to court.
  • Many types of common disputes simply do not raise a legal claim that you can take to court. Fortunately, mediation is available even when courts are not. For example, suppose a homeowner finds that there is no legal recourse regarding lights around a neighbor's driveway that shine in the bedroom windows. Mediation --would be a good way to tackle the dispute. 

When Can Mediation happen?

Mediation can happen at any time: the moment a conflict arises, before and during a court case, and even during an appeal. Once a trial court has given a verdict, the issues for mediation change, but mediation is still an option. Learn more about mediations during the appeal process.

Different Types of Mediation

There are four common types of mediation practiced in Maryland:  analytical, facilitative, inclusive, and transformative. Some mediators use one approach exclusively in their mediation sessions. Others may use a combination of approaches. In each type, the mediator is neutral, and the parties determine the outcomes. However, the mediator's role is a bit different in each type.

Facilitative mediation 

This type of mediation is based on the belief that, with neutral assistance, people can work through and resolve their own conflicts. In a facilitative mediation, the mediator takes an active role in controlling the "process." Process means things like setting the ground rules for how the problem will be solved. The mediator might:

• ask questions to identify the parties' interests and the real issues in the disagreement
• help the parties explore solutions that benefit both parties (sometimes called "win/win" solutions). 

The mediator does not offer an opinion on the strengths and weaknesses of the parties' cases. The mediator does not suggest solutions.
 

Transformative mediation 

This type of medication is based on the belief that conflict tends to make parties feel weak and self-absorbed. Transformative mediators try to change the nature of the parties' conflict interaction by:

• helping them appreciate each other’s viewpoints ("recognition") and
• strengthening their ability to handle conflict in a productive manner ("empowerment"). 

The mediator will intervene in the conversation between the parties to call attention to moments of recognition and empowerment. The parties set any ground rules for the mediation. The mediator does not direct the parties to topics or issues. Instead, the mediator follows the parties’ conversation and assists them to talk about what they think is important. The mediator does not offer opinions on the strengths or weaknesses of the parties’ cases or suggest solutions.
 

Analytical mediation 

This type of mediation is based on the belief that mediators with expertise in the issues in conflict can help the parties to assess the strengths and weaknesses of their positions and work to achieve settlements. The mediator controls the process and suggests solutions for resolving the conflict. Individual meetings between the mediator and one party may occur. The focus is primarily on settlement. The mediators will make their best efforts to get the parties to compromise, if necessary, to achieve a result.

Inclusive mediation 

This type of mediation is based on the belief that, with support and guidance through a problem-solving process, the parties, not the mediators, will develop a solution that meets their needs. Inclusive mediation follows a co-mediator model, which means there are two mediators. The mediators focus on strategically listening for values, feelings, and topics and reflecting these back to the participants using language that captures the intensity the participants expressed. Mediators follow a defined process that includes time for participants to:

• talk about whatever they chose
• build clarity as to what is important
• identify topics participants want to resolve
• identify the goals each participant has for each topic
• brainstorm options
• consider each of the generated options in terms of which would meet all participants’ goals, and
• determine areas of agreement, if any. 

Learn more.

 Mediation: A Four-Part Series from the Maryland Courts

Part 1: What is Mediation? from the Maryland Courts

Part 2: How Do I Find a Mediator? from the Maryland Courts

Part 3: How to Participate in Mediation from the Maryland Courts

Part 4: Common Questions After Mediation from the Maryland Courts