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 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 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. They can, by agreement, do things that are outside the realm of possible remedies a judge could order them to do.
How Does the Mediation Process Work?
The Mediation process consists of various steps and stages. However, 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.
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 change to vent emotions and express view in a safe environment. This is especially helpful during family issues as seen in divorce.
Identifying the Issues
The mediator will assist the parties in identifying main issues in the dispute. The Mediator will help parties in understanding each other’s interests and needs with respect to each issue.
The mediator will then encourage parties to become 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.
Once the parties have reached an agreement the mediator, or if represented, the parties’ attorneys may record the terms of agreement. When the mediator records the agreement, the parties are encourages to have an attorney review the agreement prior to signing. A signed Agreement can be as enforceable as a contract. If a case is pending in court, the judge may enter the Agreement as a court order, thereby dismissing the case.
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. Just remember that anyone can claim they are a mediator and aren’t really qualified as a mediator. To make sure the mediator you are selecting is a certified and qualified mediator, The Association for Conflict Resolution has created a database that only lists mediators that have attained the training to be recognized as a Certified Professional Mediator. Go to www.acresolution.org to find a certified mediator that specializes in your needs and is in your geographic location.
How do we know if mediation is for us?
Mediation is for people that CANNOT reach an agreement and need help to resolve their issues.
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.
Mediation research indicates that clients are satisfied with mediation because they are included in the decision-making process and empowered. They believe they are given a forum to present their side and are listened to. Often their perception of fairness of the process is often 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. Often people has the misconception that mediation will save them money over hiring two lawyers. That is not true. In fact, mediation can add significantly to the cost of your divorce 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 won’t. 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.
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 themself 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?
Because you are paying for time, 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.
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, it will depend upon how much time it takes to mediate your matter. Many jurisdictions have a reduced rate, mediation program. These are generally limited to custody and visitation 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 may vary depending upon the mediator selected but generally you can expect that in a safe place, 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 serious 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 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.
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. Even then, the mediator has the final say in whether anyone other than the parties can be present.
- Private Mediation Packet
- Court Ordered Mediation Packet
- Comprehensive Financial Disclosure Statement (download form)