From Conflict to Compromise
The Art of Mediation
Frequently Asked Questions about Mediation
What is mediation?
Mediation is a dispute resolution process that uses a trained person to assist other people in coming to their own agreements about how to resolve their conflict or dispute. Unlike a judge or arbitrator, the mediator does not decide the outcome of the dispute.
What kind of disputes can be mediated?
Almost any civil dispute can be taken to mediation. Experience has shown that the process of mediation can address and resolve a wide variety of claims. Although property or money are usually involved, much of the mediation process looks at issues of responsibility (liability), at issues of the extent of liability (causation), and on the fair basis to measure the injury (damages.) Some or all of those issues are present in some fashion in almost every mediation.
When is a dispute ready for mediation?
When both parties can commit to participate in good faith in a mediation, and to explore possible settlement, a dispute can be submitted to mediation. The parties need to agree to attend, to agree on the identity of the mediator, and to agree to share in the costs of that mediator's service.
When are disputes usually mediated?
Most cases reach mediation after they have been in litigation process for many months; sometimes years. After a case has been defined on paper (in the pleadings), and after some "discovery" process (exchange of documents and depositions of witnesses), each side can evaluate the strengths and weaknesses of the case. Mediation discussions then focus on evaluation of the likely outcome of disputes over certain facts and how the law will apply to those facts.
What are the benefits of mediation?
First, it often can resolve the dispute, and, in contrast to most litigation, in a way that satisfies both parties. Even if the mediation session does not end the dispute that day, it often sets the framework for follow-up discussions that do reach settlement soon after the mediation. Second, mediation is inexpensive and can be scheduled rather quickly when the parties are ready for it. It offers a relatively low-risk exploration of settlement in a setting where the expectations for success are relatively high. Often, concessions are made during the course of the day which bring the parties far closer to each other than either side might have expected at the outset. Even in those cases that don't settle, the process helps both sides understand why they take different views of the case and the risks they face if they take the case to trial.
Is mediation binding?
If you are involved in a divorce or another family issue that is filed in court, any agreement you reach may be filed with the court. You should speak with your lawyer about how this works and what your options are. If your dispute is not filed in court, the agreement is usually considered to be a contract. Depending on the nature of the agreement and the dispute, if there is a breach of the contract, you might be able to file a claim with the court. The mediator may recommend that you contact a lawyer if you have questions about this before or during a mediation. Interestingly, mediated agreements have been found to be adhered to more often than judgments by the court. This makes sense if you know that no agreement may be reached in mediation unless everyone involved agrees.
Is mediation confidential?
Mediation is a private process, not open to the public. For the most part, what happens in the mediation is confidential. There may be certain limitations to confidentiality depending on state law or other factors. Make sure you talk about this issue with your mediator before you begin mediation. If the case is filed in court, you may be required to disclose the terms of the agreement you reach. Speak with your lawyer or mediator about this.
If I use mediation, will I need to go to court?
If you are using mediation in order to obtain a divorce, you will have to file in court for your divorce. However, if you are able to reach a mutually agreeable resolution to all of the property, financial, custody, parenting and other issues that you are attempting to resolve, and the court accepts your settlement, it is unlikely that you will have to make many court appearances. Generally, the more you do outside of the court to decide how you want to handle your divorce, the better. If you are using mediation for other types of family issues, you may never need to go to court unless there is already a case filed in court.
Will I need a lawyer in order to use mediation?
In divorce cases, mediators will recommend that each spouse be represented by their own attorney. However, by using mediation, it is likely that you will use much fewer legal services and that those you use will be different than if you did not use mediation. You lawyer will provide you with guidance and legal counsel and will draft documents for filing with the court. Even if the mediator is a lawyer, the mediator is not acting as a lawyer and cannot represent either person in the divorce.
How much will the mediation cost?
My rates are $500 per side for half days and $1,000 per side for full days.
Who should participate in the mediation session?
The parties who have a direct interest in the outcome of the case should attend. Other persons who have the power and authority to agree to terms of settlement, such as an insurance claims representative, should also attend. If a party or decision-maker cannot attend in person, the other party should agree to the alternate arrangement. Participation by telephone, or participation by periodic telephone contacts, is less satisfactory and inhibits full understanding and participation in the dynamics of the discussion during the day.