Frequently Asked Questions About Mediation

WHAT IS MEDIATION AND HOW LONG ARE MEDIATION SESSIONS?

Mediation is a confidential process. Mediators are highly trained neutrals who assist parties in creating plans that best serve the needs of the parties involved. In family law cases, mediators assist parents in making their own plans for their children by keeping the focus on the children's needs, the safety of all involved and helping to establish better communication between the parents. These mediation sessions are generally two to four hours in length. In general civil claims, whether filed or in pre-filing mediation- the length of the mediation is governed by the complexity of the matter and the number of parties. Ironically to some, the more complex the issue the more likely it is a good case to mediate. Ordinary citizens are ill-prepared to understand the complex and sensitive issue presented in an archaic trial format.

In drug and alcohol dependency cases, mediators assist the parties in working out a plan that best supports the addict's needs. Parents, social workers, all involved attorneys, and other participants are invited to participate in the mediation. Orientation takes place at the time of the mediation session, which is generally 2 ½- to 3-hours long. At the end of the mediation session the parties report directly back to the appropriate monitoring agencies and request that the Court, if the matter is before a trial court, to make their agreement an order or set a date for a hearing if no agreement is reached. In elder care or estate planning matters, mediation or coaching sessions proceed along highly individualized paths, however, the involved parties are always advised in advance as to the coach or mediators opinion about his estimate of the time commitment.

HOW IS MEDIATION DIFFERENT FROM LEGAL LITIGATION?

In legal litigation, the parties retain attorneys whose focus is to prepare a case which will result in the best decision for their client by a judge. Often, litigation includes an adversarial approach demeaning the other party. 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, which usually takes longer and take place in a public setting.

Mediation is based on the principle that people are capable to resolve their own disagreements if given the right support. Generally, it is non-adversarial and the parties agree that all information will be openly shared in a safe, neutral environment. It is a 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 anything discussed during the mediation to anyone other than the participants. The mediator does not represent either party. Generally, the mediation does not include lawyers except in a consulting or reviewing capacity. However, in some cases, mediation includes both parties and lawyers.

WHAT CAN I DO TO PREPARE MYSELF FOR MEDIATION?

Do whatever you can to separate your feelings about your wellbeing from your feelings about others. . Take into consideration the things discussed during orientation. Bring at least two different proposals about how your issues for mediation should be handled. Be prepared to listen to other's ideas so that you can have a discussion about what might work for everyone. Make a list of any specific concerns so that they can be addressed in putting together the plan. Prepare yourself to listen mindfully. Prepare the fundamental ideas you want to present in a concise simple format. This may be the last time you are in control of telling your story in a private confidential manner without fear of judgment.

WHAT ARE THE RULES ABOUT TALKING TO A MEDIATOR IN ADVANCE, ESPECIALLY IF THE CASE CONCERNS CHILDREN AND I'M AFRAID OF MY CHILD'S OTHER PARENT?

Anyone who has had a history of violence or intimidation with their child's other parent has the right to meet with the mediator without the other parent being present. This is true for any kind of mediation. You also have the right to bring a person with you who makes you feel more comfortable (a support person) to the mediation sessions. These sessions are private, which means confidential, and are not recorded. The support person may sit with you in the mediation session but is normall not allowed to speak. There is no testifying during the mediation. Unlike and arbitration the parties are not sworn to oath. The support person can be asked to leave if he or she causes a disruption or breaks the rules of the mediation session. In some situations, the mediator can meet with each parent on separate days or at different times of the day so that they are not both at the courthouse at the same time.

DO I NEED AN ATTORNEY?

This is a personal decision and, often, a financial decision. Many people represent themselves, but the parties should make it clear if they choose to have an attorney present. That decision needs to be reported to all the parties prior to the commencement of the mediation or unnecessary disruptions and continuances may occur. Your attorney may wish to communicate with the mediator on matters of law without you present. You should not be alarmed about this. It is quite ordinary.

CAN MY ATTORNEY COME TO MEDIATION?

Yes, your attorney must participate in the mediation session in general civil cases if you have one. However, the mediator generally meets first with the lawyers and then spends most of the mediation session meeting with only the parents in domestic cases. Also particular to domestic law cases your lawyer may want yoy to discuss any questions you might have directly and privately with the mediator in either the general session or in what is called private caucus. Your attorney may decide that you call him or her with questions as they come up during the mediation.

WHAT KIND OF DISAGREEMENT CAN BE MEDIATED?

Generally any kind of disagreement can be mediated. The more sensitive or complex the issues the more beneficial mediation may be. The exceptions are class action suits, cases involving punitive damages, and lawsuits which require statutory, judicial or regulatory case law to resolve. 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 traditional 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.

WHAT DOES MEDIATION DO?

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
  • Record agreement with written documentation
  • Helps prevent future disagreements

WHAT ARE THE DIRECT BENEFITS OF MEDIATION?

Mediation usually provides a quicker, more cost effective and more satisfactory outcome than legal litigation. It may take months and sometimes years to resolve a disagreement in court, 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. This results in a higher likelihood of compliance with the mutual agreement since parties are usually more likely to comply with a solution to which they agreed. In mediation, the parties are able to customize the resolution 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.

WHAT GOES ON AT A MEDIATION SESSION?

Within a mediation session, two types of meetings can occur. First, the joint session is held. This is when everyone is present; parties, their representatives and lawyers meet with the mediator and outline the basic issues, interests and positions of each side. The second type of meeting is called caucus. A caucus is a private and confidential meeting between the mediator and one of parties and their attorney(s). In mediations, both types of meetings occur as it helps overcome positional obstacles and helps maintains a forward progress toward a mutually agreeable resolution.

HOW DO THE PARTIES AND THE MEDIATOR WORK TOGETHER?

The normal process is for the parties and mediator Come together, at scheduled sessions determined by the parties. Essentially mediation runs like a guided negotiation between the parties, with the mediator facilitating the communication. Most mediations 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.

HOW LONG DOES MEDIATION TAKE?

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. While some mediations are completed within a half-day session, it can take several half and full-day sessions to reach a mutually agreeable resolution. The each parties control the length of the mediation.

IF I USE MEDIATION, WILL I NEED TO GO TO COURT?

In specific cases, for example, in divorce you need to file in court the divorce paperwork. If a mutually agreeable resolution in mediation to all of the property, financial, custody, parenting and other issues and the court accepts your settlement, it is unlikely that you will have to make many, or any, court appearances. Please consult with a lawyer prior to mediation on your local Judicial System requirements.

HOW DO I GET A MEDIATION STARTED?

There are several international, national and local mediation organizations and associations. Some are non-profit and others are for-profit. In business matters, the first starting step is to have an Alternative Dispute Resolution clause in your written agreements and contracts that establish the procedures and structure for handling disputes. In personal and community matters, most agreements are simple and verbal. If there is no written or discussed agreement between parties on how to handle disagreements, please contact an ADR Professional.

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.

AM I REQUIRED TO SIGN ANYTHING AT MEDIATION?

Yes. If the parties can agreement on a path to resolution then it must be reduced to writing for the benefit of all parties involved and for clarity if enforcement of any provisions is sought later.

CAN NON-PARTIES BE PRESENT AT MEDIATION?

So long as all parties agree, non-parties can be present. If there is an objection by one party or the other non-parties cannot be present unless that non-party is essential to the decision making process.

Non-parties can come for moral support but they will be asked to remain outside of the joint meetings. If parties decide to separate, non-parties are permitted to join while meetings occur in separate caucuses.

CAN THE MEDIATION BE AUDIO TAPED?

No. Mediation sessions are confidential and absent agreements which are intended to be reduced to a Court Order, nothing that occurs in mediation may be used or commented upon in Court. Accordingly, there is no reason to record what occurs in mediation. The mediator will provide a written explanation (Memorandum of Understanding) of any agreements reached in mediation. If no agreements are reached, the mediator will also provide a written explanation of that to the parties and their lawyers.

WHAT IS ARBITRATION?

Arbitration is an Alternative Dispute Resolution process whereby a person chosen as the arbitrator resolves the disagreement between parties. Arbitration is similar to a court trial, with several exceptions:

  1. The arbitrator (or panel of arbitrators) make(s) the decision called an "arbitration award"
  2. The arbitration does not take place in a courtroom.
  3. The arbitration award is binding. With rare exceptions, there is no right to appeal.
  4. Arbitration is not a matter of public record. The proceedings are private and confidential. Generally there is not a court reporter or written transcripts.
  5. Discovery or the process by which lawyers generally prepare their cases is extremely limited and subject to agreed upon guidelines.
  6. The rules of evidence are relaxed so that the parties have a broader scope, more expanded opportunity to tell their stories;
  7. With very few exceptions, it is much less expensive than legal litigation.
  8. An arbitration time frame is substantially less than that of litigation and going to trial.
  9. No jury. The Arbitrator(s) maintain neutrality and conflicts of interests.
  10. Generally, all paperwork and evidence presented are destroyed.

WHAT IS THE DIFFERENCE BETWEEN MEDIATION AND ARBITRATION?

Mediation is a voluntary alternative dispute resolution process. All parties must consent to participate in good faith and work toward a mutually agreeable resolution. Mediating parties are not bound to resolve their dispute. However once a resolution is reached, it can be made binding if the parties decide to draft a contract called a settlement agreement. Mediations are not "decided" in favor of one party or another; rather, the mediator simply facilitates the negotiation process. The parties decide their own outcome.

Arbitration is a non-voluntary alternative dispute resolution process. Unlike mediation, a knowledgeable, independent, and impartial third party is empowered to make a decision. The arbitrator hears the disagreement between one or more parties and after considering all relevant information renders a final decision in favor of one of the parties. Arbitration decisions may be either binding or non-binding, depending on the terms of the arbitration agreement. Binding arbitration decisions may be confirmed by a court and carry the same significance as a court judgment.

WHAT ARE THE BENEFITS OF ARBITRATION?

The advantages of arbitration include:

  • Timely resolution and closure to complex issues
  • Lower costs than litigation
  • Privacy and confidentiality of issues and parties
  • Quick process avoiding court back-logs
  • Parties maintain more control over the proceedings than litigation
  • Opportunities for Parties to express their interests without objections
  • Limited case precedent and legal procedures
  • Ability to select arbitrator(s)