Mediation Center FAQ
BRIGID A. DUFFIELD
Frequently Asked Questions about Mediation
What is mediation?
Mediation is a method of dispute resolution, a process of resolving disputes, in a facilitated negotiation by an accepted neutral third party who assists the involved parties in the resolution of the dispute but has limited or no authoritative decision-making power.
Mediation is an informal process and usually non-adversarial. It is quick, private, and relatively inexpensive in the overall cost of litigation and can be voluntary or court-referred.
Mediation can preserve relationships between the parties particularly in the area of family law. Parties can custom tailor and design solutions to meet their individual situations. In mediation, the parties are not limited by court imposed remedies. The parties may create solutions which a judge could not order but would order if agreed by both parties. The parties can, by agreement, do things that are outside the realm of possible remedies a judge could order them to do but creatively solves specific situations that the law does not provide for.
How Does the Mediation Process Work?
The Mediation process consists of various steps and stages. Here are some typical elements to the process:
First, the mediator will describe their role and the process. They will discuss the Agreement to Mediate and other documents for the mediation process and for the success of the mediation.
The mediator will ask each of the parties to describe their view of the dispute and what they may want out of any solution. The parties are given a chance to vent emotions and express their view in a safe environment, especially when their views are one hundred and eighty degrees apart.
Identifying the Issues
The mediator will assist the parties in identifying main issues in the dispute as well as the underlying issues leading to the dispute. The Mediator will help parties understand each other’s interests and needs with respect to each issue.
The mediator will encourage parties to become creative, problem solvers, look objectively at the issues, identify and discuss possible solutions. At times, mediators may use a technique called “caucus” in which they meet with parties separately and in confidence. This can lead to fuller clarification of the parties’ needs and development of options for a solution and assist the mediator in creating more options for resolution.
Once the parties have reached an agreement the mediator, or if represented, the parties’ attorneys may prepare a written memorial or order reciting the terms of agreement. When the mediator prepares the written agreement, the parties are encouraged to have an attorney review the agreement prior to signing. A signed Agreement can be enforceable as a contract. If a case is pending in court, the judge will enter the Agreement as a court order, thereby concluding the matter.
How do I select a Mediator?
Mediators come from different professions, and have a variety of approaches and styles. Lawyers often advise their clients about the importance of selecting the mediator who matches up with the needs of the clients and the facts of their case. Selecting the right mediator for the parties and the issues sets the tone for either resolution or impasse.
One of the first steps in selecting a mediator is to identify the background and style of mediator that would most suit the parties and the nature of the issues involved. In addition to the mediator’s curriculum vitae and the standard mediation agreement, a sample of articles written by or about the mediator and any promotional material that the mediator can provide are helpful. A mediator’s website is a great starting point to learn about the potential paid professional you are about to hire. Anyone can claim they are a mediator and may not be qualified or trained as a mediator. To make sure the mediator you are selecting is a qualified mediator, The Association for Conflict Resolution has created a database that lists mediators that have completed the training to be recognized as a Certified Professional Mediator.
How do we know if mediation is for us?
It’s a question to be answered by considering the Timing, Issues and Ability to Problem Solve. Timing – sometimes, people go to mediation prematurely, that is before their partner is aware of the issues. Issues – sometimes, people go to mediation without telling the other party what the dispute is. Ability to Problem Solve – sometimes parties are unable to problem solve. If they don’t know what the issue is and hear it for the first time in a mediation session, a Mediator is going to give that party the opportunity to think about the issues, sleep on it, talk to their attorney. Why? Because if someone agrees to something in mediation because in the moment it seem right and then realizes later the absolutely right reason why they cannot make that agreement, they have to retract their agreement which creates mistrust by the other partner and ultimately the inability to problem solve in the future. Mediation is for many people and it is best for those who known the issues, have reached an impasse and need a skilled professional to help them create new options for resolution and a new ability to be creative with new problems in the future.
What are the benefits of mediation?
Statistically, mediation clients experience more long-term satisfaction than their adversarial counterparts, the litigants. Clients who mediate to a successful resolution create agreements that they perceive to be fair and equitable. When the parties perceive that, the agreement is more likely to sustain the test of time. They are also more likely to mediate again, successfully, when new problems or disputes arise.
Mediation research indicates that clients tend to be satisfied with mediation because they are included in the decision-making process and empowered to make decisions that are specific to their life. They believe they are given a forum to present their side and are listened to and heard by a skilled mediator. Often their perception of fairness of the process is more important to them than a particular outcome.
Clients report the benefits of mediation to be:
- Control over the process
- Active participation by the parties to reach an agreeable solution
- Focus on the future and preservation of relationships
- More effective communication
- Less expensive than litigation
- Better long term results
- Reduced conflict and better for children
Should I schedule a mediation appointment before consulting with a lawyer?
No. But if you do, a skilled mediator will encourage to consult with an attorney before entering into an agreement or an agreement that could become a court order.
Often people has the misconception that mediation will save them money over hiring two lawyers. That is not true. In fact, mediation might add significantly to the cost of your resolution if not planned properly as part of your negotiation plan. Mediation should be scheduled after you and your partner have narrowed down the issues to what is agreed and what is disputed. Taking only the disputed issues to a mediator will save you money, since because the mediator does not need to help you negotiate the issues which are resolved.
Can I schedule mediation if I can’t talk to my spouse?
Absolutely. Often communication has broken down between the parties. In that case, without the skill of the mediator, you will not know where you are failing or why, despite your willingness to communicate, your partner’s perieved unwillingess. Being willing to communicate is not communication. Effective communication requires that both parties be willing and able to send information in a manner in which it can be received. So, if you can’t talk to your spouse, we can help. Sometimes the first step, is a three way email exchange with you, your partner and our office.
If I can’t talk to my spouse, will the mediator be able to?
Yes…and probably so will anyone other than you. It is not uncommon that anyone else can say the exact same thing you would to your partner and they will hear it, even though they will never hear it if you say it. There are many psychological reasons why this is true. Just trust that most skilled mediators will be able to handle your difficult spouse. Mediators are trained to assist parties in identifying issues including parenting style differences, creating options for long-term resolution and finding common ground.
Is Mediation an alternative for me?
Very likely. For most people, including many with impairments, mediation is a viable option for dispute resolution. The skill of the mediator will determine the likelihood of success with your particular situation.
Can the mediator act as my attorney?
Absolutely not. The mediator is not a substitute for your lawyer and there are ethical considerations why it is not in anyone’s interest to have the mediator be the attorney for either party. Most good mediators insist that both parties have at least a consulted with an attorney to familiarize them self with their best/worst case scenarios. As a neutral party, a mediator cannot give any professional advise, legal or therapeutic.
Can I reduce the cost of my divorce if I mediate?
Possibly. You are paying for time so it will depend upon how much time it takes to mediate your matter. At a minimum, it is a conservative use of your family resources when you consider that for the same hourly rate, you are paying for one person instead of that hourly rate being paid to two lawyers to discuss your issues, twice the cost.
What is the cost of mediation?
The cost will vary depending upon the hourly rate of the mediator, often tied to the skill of the mediator and the number of hours spent in mediation. Because you are paying for time, the cost of private mediation will depend upon how much time it takes to mediate your matter. Many jurisdictions have a reduced rate, mediation program for court ordered mediation. Court ordered mediation is generally limited to parenting decision and scheduling parenting time matters. At best, when you calculate the same hourly rate for two lawyers versus the hourly rate you are paying for one person to discuss your issues, you will find it is a conservative use of your family resources.
What can I expect if I come to mediation?
The mediation session format will vary depending upon the mediator selected and their style. Generally you can expect that in a safe place, or via Skype or Zoom, you will be able to discuss difficult matters, facilitated by a neutral person who can help guide your discussion. Although most mediators are experts in their field, they cannot give you legal advice. Most good mediators require that you are consulting with an attorney when you are mediating.
What should I do before I come to mediation?
Everyone who decides to mediate should have a consultation with their lawyer and be well-versed in their best and worst case scenarios. In addition, sharing their understanding of what the issues in dispute are as well as their suggestions for possible resolution helps make the time productive. If someone is seeing a document or hearing something for the first time at a mediation session, they have not had adequate opportunity to think about the issues and are not in a position to settle them.
What should I bring to the initial mediation session?
The most important thing to bring is the list of issues in dispute and your suggestions for possible resolution of those disputed issues. You should also bring any documents for consideration in mediation such as a parenting agreement. It is usually not necessary to send anything to the mediator in advance of the first session unless there is an agreement for payment for work the mediator does outside of the mediation session. Most mediators will not review documents in advance of a mediation so that they can remain neutral and can make their observation and assessment of the parties without the positioning rhetoric which frequently accompanies legal matters.
Who can I bring to the mediation session?
While often people want to bring children, grandparents or new spouses to a mediation session, unless both parties agree, the only people participating in the mediation are the parties. If the parties agree, the mediator may consider adding people to the process. Ultimately, the mediator has the final say in whether anyone other than the parties can be present for any or all of a mediation session.