Category Personnel/Employment
Title An Overview of the Mediation Process
Author/s Mike Ely, MA, MBA, Certified Mediator
Preview An Overview of the Mediation Process

An Overview of the Mediation Process
by Mike Ely MA, MBA, Certified Mediator

Christian schools, like many ministries, desire to keep their disputes privately among believers and not resolved in public secular courts. Therefore, it is not uncommon to have a binding mediation (and possible arbitration) clause in their contracts with employees, constituents, and other contractual relationships. The purpose of this article is to give an overview of what really happens when a dispute is taken to mediation.

While the term Christian conciliation is often used, it can involve a variety of techniques. However, I will use the term mediation and limit the scope of this article to recognized mediation processes (by both Christian and secular mediators) that are typical in most states.

Mediation is used by two conflicted parties to resolve their disputes, to bring lasting peace to the situation, and possibly to bring restoration to the relationship. In mediation, each party is free to speak without any insult or coercion and is to be free to make his/her own informed choices about settlement or nonsettlement.

The purpose of the mediator is to be a neutral party:

  • to help voices be heard, without insult or coercion;
  • to be an active listener, asking open-ended questions; 
  • to ensure that the discussions are focused on problems and solutions and not on persons; and
  • to help craft a binding settlement agreement, or declare an impasse.

A competent mediator will strive for fairness and equity for both parties. The mediator may suggest options and ask open-ended questions to bring understanding and clarity. The mediator will not give legal advice, nor make any decision for either party.

Convening a Formal Mediation

Once the two conflicted parties agree in principle to mediation, the first step is to agree on a mediator. Some mediators are sole practitioners and handle every step of the mediation process. Other mediators work for mediation firms. Should a mediation firm be selected, then it is likely that an administrator will also be assigned to the case to handle the paperwork and logistics of the conference(s), and to follow up with the conditions of the settlement. If should be noted that often a mediator is an attorney or a retired judge, yet many mediators are neither. Certified mediators are individuals who have completed the required training and experience, which varies slightly from state to state. Mediators are also used in Superior Courts to help settle cases such as small claims, civil harassment (restraining orders, parental/family dispute, etc.), and certain types of civil lawsuits.

Mediation is a private process. Therefore, prior to any mediation conference, the parties must sign a mediation agreement to demonstrate that they are serious in seeking full and complete resolution through mediation. There is a need to understand and agree to the confidential nature of the mediation process. Therefore, both parties must sign a confidentiality agreement. In doing so, they agree that:

  1. No written or oral communication, information, or discovery from this mediation can be used later in a lawsuit.
  2. The mediator and his/her notes may not be subpoenaed in a future lawsuit, nor may he/she volunteer to testify on behalf of either party.
  3. The settlement agreement is a binding, enforceable, and admissible in a breach of contract lawsuit solely to enforce the agreement.

The mediator or mediation firm will provide the parties with a neutral meeting place and a meeting schedule based on their proximity and time constraints. The actual mediation conference(s) could vary from a half day to several days over a period of time depending on the progress of the settlement and the time constraints of the parties involved. Either party may bring an attorney to the mediation conferences. However, they must understand that the attorney's duty is limited to advising his/her client; he/she may not speak on behalf of the party. Also, the attorney is also bound by, and must sign, the confidentiality agreement.

The Mediation Process

At the first meeting, the mediator will set the agenda, give introductions as needed, and remind everyone of the confidential nature of the proceedings. Next, the mediator will choose one party to speak first; everyone else is to listen and withhold any responses or reactions. That party is encouraged to freely share his/her hurts without interruption. Then the other party will have his/her turn to speak freely. Once both parties have given their opening statements, then the mediator will ask for any responses from the first part, then the second. Then the discussion could become open-ended. Again, the role of the mediator is to keep the discussion positive and moving forward and to ask open-ended questions, but the mediator may not give advice.

At some point, the mediator will decide to send the parties to separate rooms for a caucus. This is a private conference with the mediator where each party can speak freely, react, and discuss settlement conditions. THe mediator will help each party identify the negotiable issues and the nonnegotiable issues. The mediator will treat each party's caucus as confidential, unless he/she is asked to communicate an offer or condition to the other party. Once the mediator feels confident that a settlement is close, he/she may bring the parties back together to help dictate the wording of the settlement agreement. If there is too much animosity between the parties, the mediator will keep the parties separate and go back and forth to receive dictation and approval of each condition of the settlement agreement.

As a Christian mediator, I ask the Holy Spirit to work in each party—to put egos and pride aside; to admit his/her mistakes; to accept responsibikity for his/her actions. Then there can be genuine willingness to resolve the conflict and reach a settlement. The best outcome of all will be forgiveness and restoration.

Settlement or Impasse

Once the conferencing is over and the conditions of a settlement are agreed to in principle, then the mediator will continue to receive dictation from both parties to craft a settlement agreement. This is their document, not the mediator's. Both parties must sign and agree to each condition of the settlement agreement. Both parties must clearly understand that this settlement agreement becomes a legally binding and enforceable contract between both parties. Should one party not fulfill his/her conditions of the agreement, then the ther party is free to bring a lawsuit for breach of contract in civil court. Only this document survives the mediation process. All other information, discovery, and communication is destroyed and remains privileged. 

The settlement agreement will include the specific conditions to be carried out by one or both parties. It will include a specific schedule of actions, deliveries of property or monetary payments, and the payment method. Finally, it will include a commitment that there will be no disparaging remarks by either party about the other party or the mediation process—verbally, in writing, or on any social media.

If it becomes clear to the mediator that one or both parties are not willing to settle or negotiate then an impasse is declared. The parties usually sign a nonsettlement agreement to document that they engaged in a formal mediation process but were unable to reach a settlement. The mediator is finished and is released from the proceedings.

At this point, one or both parties may

  • Seek mediation with another mediator
  • Seek to have an arbitrator (perhaps the first mediator) set the conditions for them
  • Choose to file a lawsuit, and let the dispute be settled in open court

Mediation is a godly approach to settling disputes, as described in Matthew 18. Using this principle, the mediator becomes the other person to take with you (verse 16) to help resolve the dispute. Mediation gives both parties the freedom to settle their disputes among believers in a voluntary, nonjudgmental environment where both parties commit to confidentiality, to speaking honestly and openly, to focusing on the dispute and not on each other, and lastly to making informed decisions about a settlement or to decide not to settle.

Mike Ely is a retired Christian school administrator, having served 40 years as a Christian school teacher, administrator and superintendent. In addition to his educational degrees and credentials, Mike holds an MBA in human resources management and is an experienced certified mediator. He is a member of the Human Resources Management, the Southern California Mediation Association and the Mediation Association of Colorado. He offers his services as an HR consultant and mediator to Christian schools and ministries. Contact or 562-233-7826.

LLU 28.2

Notice: This article is designed to provide accurate and authoritative information in regard to the subject matter covered. It has been provided to member schools with the understanding that ACSI is not engaged in rendering legal, accounting, tax, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. Laws vary by jurisdiction, and the specific application of laws to particular facts requires the advice of an attorney.

Association of Christian Schools International
731 Chapel Hills Drive
Colorado Springs, CO 80920
Phone: 719.528.6906

Download An Overview of the Mediation Process