04/10/2023
What is Mediation
Mediation is a voluntary, consensual process that uses a trained, neutral third party to facilitate the negotiation of disputes. The goal is to reach a binding settlement agreement.
THE BENEFITS OF MEDIATION
The use of mediation is increasing dramatically across the nation. The advantages of mediation are recognized to be numerous and substantial.
Control by parties – The parties remain in charge of the outcome.
Opportunity for better results – The parties understand their dispute better than any court or jury could.
Effective – A major portion of the cases in family law are settled at mediation
Greater compliance – Parties are more likely to comply with a mediated result than with a judgment.
Reduced time and expense – Mediation can be concluded in a short amount of time...often in a day or less.
Voluntary, consensual process – The parties stay in control. The result is determined by the parties and not a person in a black robe who gets only s few hours with the participants.
Preserved, improved relationships between parties – Preserving or improving relationships is especially important in family cases where the parties may have on-going dealings with each other or with children or other family members.
Decreased stress and disruptions to ongoing activities.
Private/confidential - what happens in mediation, stays in mediation
Improved skills and relationships – Mediation helps parties in future negotiations and dispute resolution.
SELECTING THE MEDIATOR
Once the parties have agreed to mediate, your attorney will work with the parties or their counsel to determine which of its mediators would be best suited to serve. The staff person handling the case may suggest one or more mediators based on the issues or profile of the case, although the parties or counsel may request a specific mediator as well.
The basic role of a mediator is not to render a decision but to facilitate a negotiation and assist the parties in clarifying their issues and resolving them. If the parties choose, an additional role of a mediator may be to evaluate the issues in dispute. These roles should be considered in picking a mediator. Other factors to be considered involve the individual characteristics of the mediator:
Neutrality
Integrity
Inter-personal skills
Experience
Training
Subject matter expertise, if the parties desire evaluation of the issues
Availability
THE ATTORNEY AS ADVOCATE IN MEDIATION
At the mediation itself, parties can have their attorneys present or they can choose to do so themselves. Attorneys have a critical role to play in ensuring that parties have a clear understanding of their legal rights and obligations as they go through the mediation process. Mediators are not permitted to give legal advice and are ethically and statutorily obligated to make it clear to the parties who choose to mediate that they should rely on legal advice. The mediated agreement that parties reach is only as strong as the information on which it is based, and it is critical that parties be well informed and clearly advised about the ramifications of the decisions they are making.
THE MEDIATION
INTRODUCTION
The mediator first explains the process to be utilized and establishes the ground rules. All those in attendance sign a mediation agreement which, among other things, binds them to strict confidentiality.
PRESENTATION OF VIEWS
One party presents his or her view of the dispute. This presentation is informal and can be done by the attorney and/or the client. Cross-examination is not used, nor are any rules of evidence or procedure utilized. The other party is then given an opportunity to present his or her view of the case. This process continues as long as necessary to get the issues on the table.
PROBLEM SOLVING/NEGOTIATING STAGE
With the aid of the mediator, the parties and their counsel then initiate negotiations. The mediator helps the parties focus on identifying the real issues and addressing them.
While the legal aspects of the family dispute are certainly relevant in the negotiation, possible solutions may involve extra-legal issues as well. These non-legal matters are often at the heart of the dispute, yet they may not be adequately addressed in a courtroom.
The negotiations continue until successfully completed or until the parties decide that they are unable to reach a resolution. The problem-solving may take place in confidential private sessions (“caucuses”) between the mediator and each party, with counsel, and may also take place over more than one session.
Depending on the needs of the parties, family mediations may either be scheduled to be completed in one day or in two- to three-hour sessions.
RESOLUTION
A settlement agreement is reduced to writing when the parties reach agreement. The attorneys draft the terms of the agreement. If questions are raised during the legal review, the parties can agree to return to mediation to discuss the issues and finalize the agreement, if necessary. Or they can waive this legal review and agree to a binding contract in the mediation. Agreements affecting the rights of children may be subject to ongoing judicial review.
PREPARING FOR MEDIATION
The parties and their counsel are well served by appropriate preparation, whether the attorney will be participating in the actual mediation or not. Both the party and attorney should have:
A realistic view of the issues in the dispute.
A clear understanding of his or her needs and goals.
An initial presentation of his or her viewpoint.
A willingness to compromise.
In addition, they should be prepared to:
Listen
Evaluate
Explore options to be considered in the general session and in caucuses.
Explore and evaluate different settlement scenarios.
Find ways to assist the other party to be flexible on critical issues.
Explore a resolution
Make a decision
BEING SUCCESSFUL IN MEDIATION
Being successful means getting to the best possible result with the lowest possible cost – both emotional and financial. The key to that result is that the decision maker in mediation is not a judge, the lawyers, or the mediator – the decision makers are the parties, with the advice and assistance of counsel. Thus, the most effective approach to mediation is likely to be based on a desire to reach a good resolution and end the dispute, rather than the combative style that may have characterized earlier interactions between the parties and their counsel. Being open to the possibility of crafting a creative solution means that the result may be something that both parties can live with more readily than if the result were imposed on them.
CONFIDENTIALITY
Generally, the interaction taking place within the mediation process is confidential. This encourages a full exchange of facts, views and feelings.
