What is Mediation?

California Rule of Court 3.852 defines mediation as:

“…a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement.”

That’s a serviceable definition. But it omits the confidential nature of the process and casts the mediator as passive. It also suggests direct party-to-party communications, which almost never happens in employment mediations.

Let’s do what all the kids do these days: ask ChatGPT. After some back and forth, these are the words translated from tokens that ChatGPT produced:

“At its core, mediation is a structured negotiation facilitated by a neutral third party. That’s it. It’s not magic. It’s not therapy. It’s not arbitration. And it’s not just ‘settlement talks with snacks’ (though the snacks do help).

Mediation is voluntary. Confidential. And unlike a judge, the mediator doesn’t decide anything. Their job is to keep the conversation going, reframe unhelpful narratives, and help the parties move toward resolution—even if that resolution looks a little different than what each side thought they came for.

That’s the neutral, handbook-friendly version.

Here’s the one you’ll probably relate to more:

Mediation is the one day in a case where people stop posturing and actually talk about outcomes.”

Interesting. I’m not sure what concept “structured” is meant to capture. I like that the mediator is more active than the CRC definition. And while “settlement snacks” once expanded our waistlines, Zoom mediations have made the left-over Halloween chocolate, old sticky jolly ranchers, and microwaved warm cookies the exception rather than the rule.

Re: the idea that attorneys and parties don’t posture in mediation—ChatGPT has never been to an actual mediation.

So I’ll take the bait and give my own definition. And because this is my blog, I’ll start with my mediation “inception” moment.

Nixon

In law school, I was all about Moot Court. Arguments, briefs, all of it. I couldn’t imagine doing anything but litigating.

I remember standing in the old Hastings cafeteria line with my unyielding faith in litigation, and talking to Jarret Nixon. Nixon looked at litigation with a bemused disdain that I couldn’t understand. So I asked why. He didn’t hesitate:

“Justin, litigation always looks backwards. I don’t want to spend my career reconstructing the past.”

That’s not an exact quote—Nixon probably said it better. But he planted a seed of doubt. Over time, I realized that little shit was right.

Litigation keeps clients trapped. Trapped in their trauma, their defenses, their past. And when it ends (because it always, eventually, does) it rarely ends with a published opinion that benefits the client.

As my career progressed, Mediation became a more prevalent means to end matters. I saw it as a potential pivot point. When done right, Mediation was a process that helped the parties contain the past and focus on the future.

A Practical Definition of Mediation

Mediation is:

1. A confidential facilitated process

• In my area of practice, this “process” usually means one full-day meeting. Sometimes it’s a half-day or multiple sessions.

• The “process” also includes pre-mediation calls, follow-up calls, briefs, and related pre- and post-meeting work.

• Mediation may be required by contract, policy, court order, or agreement of the parties. Most often, though, the parties agree to mediate just before or during litigation.

• The mediator does not represent either party, nor do they decide facts or law. But they are hardly passive: the mediator advocates for resolution.

• Under California law, the mediation privilege is among the strongest.

2. Between parties in a dispute

• Getting all the right decision-makers in the room is essential—and often overlooked.

• Pre-mediation calls help identify interested parties and incentives. As an advocate, come prepared to any pre-mediation call to discuss unusual incentives or dynamics.

3. Designed to resolve those disputes without further court involvement

• Voluntary resolution is the only way the parties choose how a dispute ends. Otherwise, they’re leaving it to the judges (or juries).

• Agreements reached in mediation need to be enforceable, ideally without dragging the court back in.

Putting It Together

So here’s my working definition:

A confidential process where the mediator gets the parties to: talk, contain the past, look to the future, and (usually) resolve their disputes—without the Court.

Like I said, I’m working on it.

In the coming weeks, I’ll discuss:

• Why mediation is so prevalent in the employment space

• Mediation’s benefits

• Whether it’s right for all cases

• Other foundational topics

Mondays x Morello Mediation. None of this is legal advice. Your mileage may vary.