Frequently Asked Questions
Mediation is an alternative dispute resolution (ADR) process whereby the parties are assisted by a trained and skilled third party who serves as a mediator. The mediator meets privately with the parties to facilitate confidential communication, reconciliation, and negotiation between the parties in order to reach a voluntary and mutually agreeable resolution.
In litigation, the parties retain attorneys whose focus is to prepare a case for trial. Litigation is adversarial. In litigation, you never know what the outcome will be until the case is ruled upon. There are no guarantees that anyone will come out as the “victorious party.” In the long run, everyone pays a price in litigation. Often, even the winning party may feel like the loser.
Mediation is based on the principle that people are able to resolve their own disagreements if given the right support. Generally, it is non-adversarial as the parties are not together in the same room and the parties agree that all information will be openly shared in a safe, voluntary and confidential process. Either party can withdraw or choose not to participate at any time. The mediator does not judge who is right or who is wrong but works with parties to help them arrive at a solution to satisfy their interests. No tape recordings are made and no court reporter is present. The mediator will not reveal any confidential information to anyone. The mediator does not represent either party.
Mediation is always effective. Even if a settlement is not reached, the parties will learn more about their own case and the legal process.
Generally, any kind of disagreement can be mediated. Whether it is a civil dispute involving hundreds of thousands of dollars, a workplace dispute, a divorce, or a family matter, the parties can resolve it without resorting to adversarial litigation. Even after litigation has been started, mediation can be a practical way to settle the matter in a less expensive and timely manner.
Everyone should consider mediation, especially if the parties know each other. Co-parents, business colleagues or circle of friends and relatives often have continuing relationships with each other. There is a mutually beneficial incentive to continue an amicable relationship and to explore ways to prevent disagreements from arising in the future. If the parties don’t know each other, mediation allows the parties to maintain control over their decision making rather than letting a judge decide their fate. The parties control the amount of information that becomes a part of the public record. Normally, court files are open to the public, including any allegations made by either party.
Mediation usually focuses on the underlying interests of the parties and not their positions. Mediation is used to:
- Define complaints, problems, and disputes
- Discover options and solutions
- Manage resolution process in a “win-win” manner
- Facilitate mutually agreeable settlements
- Formulate guidelines and policy
- Memorialize agreement with written documentation
- Help prevent future disagreements
Aside from low cost and high success rate, mediation provides five important aspects.
Privacy. The process of mediation is confidential as it relates to all participants, including attorneys and the mediator. Everything discussed in the mediation is confidential. Any documents that are exchanged in the mediation are confidential. Any legal or other positions advanced in the mediation are confidential. Mediation is not a matter of public record.
Control. No judge will decide the parties’ outcome. There is no legal precedent or jury to scrutinize right and wrong. The parties have the unique opportunity to "tell your side of the story,” without lawyers arguing about admissible evidence. The parties have the experience of creating your own resolution in your own words to resolve their disagreement.
Relationships. Most relationships are important to maintain intact. Business partnerships, family, friendships and long-standing social relationships are often soothed and become closer as a result of mediation.
Responsibility. The mediation process encourages the parties to assume personal responsibility for their respective roles in the disagreement. It’s not blaming the other side but rather accepting ownership for the things contributed or created the disagreement. Remember, it takes two to tangle.
Speed. Resolution for most disagreements is usually achievable within a day or two. Some more complex disputes and conflicts may require more time and communication to explore the interests and positions involved.
Mediation usually provides a quick, cost-effective and satisfactory outcome than litigation. It may take months and sometimes years to resolve a disagreement in court. But mediation can be paced according to the parties’ needs and schedule. Mediation is voluntary and requires both parties’ agreement to the make a final resolution. Therefore, parties are more satisfied with the outcome than with a decision made by a judge or jury. In mediation, the parties are able to customize the settlement agreement to meet their needs rather than being constrained by the limited options available in court. Most important, parties are more likely to preserve an amicable relationship in the future.
Everyone wins in mediation. This does not mean that both sides come away from mediation automatically happy with the outcome. Each party must be comfortable enough to tell their story and assert their interests. The mediator facilitates and makes sure each party is heard; however, it is each person’s responsibility to say what is on their mind. Mediation is without time constraints and can be conducted over several days or weeks. This provides each party time to think, reconfirm their interests and to explore solutions. Whatever is agreed upon is mutual and neither party is forced to agree to anything.
The best time is sooner rather than later before the parties incur the expense and emotional turmoil of litigation. It frequently happens that one party is ready to begin mediating before the other, so some sensitivity to the feelings of the other party is courteous. But it’s never too late to mediate. Every case should be mediated before litigation proceeds to trial.
Anyone can request mediation. Mediation is available to everyone with disagreements seeking closure.
In a mediation session, two types of meetings can occur: (1) a joint session where everyone is present; the parties, their representatives, and lawyers meet with the mediator and outline the basic issues, interests and positions of each side; or (2) a caucus which is a private and confidential meeting between the mediator and one of the parties and their attorney(s). In mediations, both types of meetings may occur as it helps overcome positional obstacles and helps maintains a forward progress toward a mutually agreeable resolution.
The normal process is for the parties and mediator to meet together at a scheduled session determined by the parties. Essentially, mediation runs like a guided negotiation between the parties, with the mediator facilitating the communication. Most meditations generally run by the following five-stage format:
Stage 1: Establishing the Process: The mediator and the parties agree to a number of guidelines they will follow in the mediation. This usually includes only allowing one person to speak at a time, treating all parties with respect, and confidentially.
Stage 2: Exploring Positions and Interests: The parties usually make their initial statements regarding their disagreement and define what they hope to resolve in the mediation.
Stage 3: Developing Solutions: Each party discusses their interests and possible solutions to resolve their disagreement.
Stage 4: Finalizing A Resolution: The parties assisted by the mediator create a solution mutually agreeable to both parties.
Stage 5: The Written Agreement: Once agreed on, the solution is formalized in a written resolution agreement.
Traditionally mediation is conducted by a single mediator who will:
At the Initial Session:
- Assess whether and how to intervene with the Parties
- Create a comfortable environment for communication
- Invite parties to participate and to share their thoughts and concerns
- Establish the purpose, structure, and guidelines of mediation with the parties
Throughout the Session:
- Help each party to feel heard, respected and acknowledged
- Identify key issues that parties need to address and interests influencing issues
- Outline the issues and interests so they can be visually seen
- Continue to create an ambiance of safety and dignity
- Help keep the process focused and forward moving
- Manage emotions and communication styles
- Deal with unproductive power dynamics and egos
- Encourage risk taking
- Facilitate an effective negotiation process
- Sort out personal and emotional impasses and position obstacles
During the Resolution Process:
- Encourage creativity and out-of-the-box ideas
- Help parties brainstorm solutions with each other
- Help each party think through their options
- Establish vocabulary words of potential agreements
- Discuss how agreed resolutions can be implemented
- Draft a Settlement Agreement to be reviewed
- Finalize the Settlement
- Agreement in writing signed both parties
The length of mediation is determined by a variety of factors including the complexity of the issues, the complexity of the relationships, the number of participants, the cooperation of the parties, and the readiness of the parties to explore a mutually satisfying resolution. Most mediations are completed within a half-day session. Each party controls the length of the mediation.
Most times, it is not so much ‘not wanting’ to agree but ‘knowing how’ to agree. A mediator can bring a new perspective. The mediator’s own experiences and knowledge can assist parties in exploring alternatives that they might not have previously considered.
Parties may or may not want lawyers to be present. It is a choice that is usually discussed between the parties prior to mediation. Some parties prefer to decline legal consultation and instead do their own research. Others, especially in complex issues, feel more secure with a legal representative present. Most parties in mediation prefer to have a consulting lawyer present to answer questions that may come up during the mediation. In addition, the lawyer can clarify information provided by the mediator or to provide another perspective. The consulting lawyer can also review the resolution agreement to be sure it accurately describes the agreement reached, is clear and enforceable.
Yes, if there is no objection from the other party. Mediation is not court. Each party must present their own “case” and clearly define their position and interests.
Yes, mediation is legally binding if both parties agree upon a mutual resolution. This mediation settlement agreement must be signed by all parties.
If a mutually agreeable settlement is reached in mediation to all of the property, financial, custody, parenting and other issues, it is unlikely that you will have to make many, or any, court appearances.
No party is forced to accept a solution that does not meet his/her interests and needs. The parties should understand that the mediation goal is to create a solution that comes as close as possible to a "win-win" agreement while recognizing that parties don't receive everything on their wish list. If there is no resolution, the parties may still go to court to resolve their disagreement.
No. A mediator can neither be a witness nor talk to anyone about the case. Additionally, neither the parties nor their attorneys may introduce into evidence what happened or did not happen during the mediation.
You should approach hiring a mediator just like you would any other professional. Speak with many mediators to get a feel for their style and approach to the process. In addition, ask questions about the following:
- Training, experience, and background;
- Experience or knowledge in mediating the type of issues you have; and
- Fees charged and how fees are divided among the parties to the mediation.
- Timely resolutions
- Reduced legal costs
- Privacy and confidentiality of issues and parties
- Preservation of relationships
- Reduction of court back-logs
- Less intimidating process than litigation
- No cross-examination
- Control over the proceedings
- Opportunities for disputants to express their interests
- Limited compromising of legal rights
Yes. The role of the mediator is a bit different in each of the following types and most mediators utilize a combination of these processes:
In a facilitative mediation, the mediator will take an active role in controlling the "process." The mediator asks questions to identify the interests of the parties and the real issues in the disagreement. The mediator helps the parties explore solutions that benefit both parties. In a facilitative mediation, the mediator does not offer an opinion on the strengths and weaknesses of the parties' cases. The mediator does not suggest solutions.
Transformative mediators try to change the nature of interaction by a) helping each party appreciate each other’s viewpoints; and b) by strengthening each party’s ability to handle disagreement in a productive positive manner. The mediator will intervene in the conversation between the parties in order to call attention to moments of recognition and empowerment. Ground rules for the mediation are set only if the parties set them. The mediator does not direct the parties to topics or issues. Instead, the mediator follows the parties’ conversation and assist them to talk about what they think is important. The transformative mediator does not offer an opinion on the strengths or weaknesses of the parties’ cases. The mediator does not suggest solutions.
Evaluative mediators use their expertise to focus and assist parties: a) to assess the strengths and weaknesses of their legal or other positions; and b) to achieve settlements. In evaluative mediation, the mediator controls the process and suggests solutions for resolving the conflict.
This process is similar to mediation but the conciliator acts more as an 'inventor' of solutions which are presented to the parties with a view of getting them to agree as to how the disagreement can be resolved. The conciliation mediator frequently provides suggestions and out-of-the-box ideas. Conciliation differs from mediation in that the main goal is to conciliate, most of the time by seeking concessions. Generally, there is a mixture of face-to-face and private caucuses sometimes referred to as “shuttle diplomacy.” The conciliator meets with each party to separately prioritize a list of interests from most to least important. Then goes back and forth between the parties and encourages them to "give" on the issues one at a time, starting with the least important and working toward the most important for each party in turn. The parties rarely place the same priorities on all objectives and usually have some objectives that are not on the list. The conciliator builds a string of agreements and help the parties create an atmosphere of trust which the conciliator can continue to develop into a “total” mutually agreeable resolution.
Historically, this form of mediation has been used when the parties have strong defined positions that need to be subjected to an expert to evaluate their positions, define the specific interests and help craft a suitable solution. The expert mediator is very knowledgeable and possesses years of expertise in the area of the disagreement, dispute or conflict. Both parties of the mediation respect and trust the mediator to help them resolve their differences and craft a solution that will be mutually beneficial to them and to their particular field or industry. Often the mediation details are not confidential, except for trade secrets, as industry policies and guidelines are often determined. The mediator is empowered to make a settlement and/or policy which may or may not be agreeable to either party.