There are several aspects of mediation that “make it work” in resolving disputes – attendance, informality, confidentiality, and self-determination. First, the process of mediation requires every decision maker to be present, reducing the time it takes to communicate and the potential for miscommunication. Second, mediation is informal, not bound by rules of evidence or procedure that attach to lawsuits and trials. Third, mediation is a confidential process that allows parties to make admissions for purposes of exploring settlement that cannot be told to the judge, jury or others if the dispute does not resolve. Finally, and most importantly, the disputing parties determine the outcome of a mediation. The mediator provides a forum and process, lawyers advocate for their clients and give advice, but the parties decide whether or not to resolve their dispute.
While disputes can resolve before or after mediation, it is wise for a party to think of mediation as the “last best chance to resolve the matter”, given the confidentiality and informality that are unique to mediating a dispute.