“Mediation in one form or another has been around since the dawn of civilization, and is widely used for dispute resolution in many cultures. However, mediation was not a part of the common law process and, until recently, was utilized only for certain types of disputes (notably, labor-management grievances). Today, mediation is used in all types of disputes. This is attributable both to court congestion and to dissatisfaction with the adversarial process generally. Experience shows mediation is one of the least expensive and least disruptive processes for resolving disputes. It is also the most effective in preserving whatever relationship exists between the disputing parties.”
“Mediation encompasses any voluntary, nonadjudicatory dispute resolution process involving a neutral third party. As will be seen, it is a very flexible process and can be conducted in whatever form the parties wish. In “classic” mediation, the mediator meets directly with the parties (attorneys generally not involved) and attempts to facilitate settlement negotiations. The mediator’s primary function is to help the parties evaluate their positions realistically so they can move toward settlement on their own. The mediator usually plays a passive role, and does not express any judgment or opinion on the merits of either side’s position. The term “mediation” also applies to voluntary settlement conferences before a retired judge or other experienced litigator. Here, attorneys usually represent the parties and make their presentations. The mediator (settlement judge) takes a much more active role in attempting to settle the case, and often expresses an opinion as to its merits and settlement value, but is usually not authorized to render a binding decision.”
[California Practice Guide: Alternative Dispute Resolution [citations omitted]]
