WHEN IS MEDIATION USEFUL?
Mediation is always effective. Even if a settlement is not reached, the parties will learn more about their own case and the legal process.
WHAT KIND OF DISAGREEMENT CAN BE MEDIATED?
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.
WHO SHOULD CONSIDER MEDIATION?
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.
IS MEDIATION LEGALLY BINDING?
Yes, mediation is legally binding if both parties agree upon a mutual resolution. This mediation settlement agreement must be signed by all parties.
IF I USE MEDIATION, WILL I NEED TO GO TO COURT?
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.
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
• Memorialize agreement with written documentation
• Help prevent future disagreements
WHAT ARE THE MOST IMPORTANT ASPECTS OF MEDIATION?
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.
WHO WINS, WHO LOSES IN MEDIATION?
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 conduct over several days or weeks. This provides each party time to think, re-confirm their interests and to explore solutions. Whatever is agreed upon is mutual and neither party is forced to agree to anything.
WHEN IS THE BEST TIME TO BEGIN MEDIATION?
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.
WHO CAN REQUEST MEDIATION?
Anyone can request mediation. Mediation is available to everyone with a disagreements seeking closure.
WHAT GOES ON AT A MEDIATION SESSION?
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 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.
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. Most mediations are completed within a half-day session. The each parties control the length of the mediation.
WHY USE MEDIATION IF WE ARE UNABLE TO AGREE?
Most times it is not so much ‘not wanting’ to agree but is ‘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.
DO I NEED TO HIRE A LAWYER TO MEDIATE?
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.
MUST AN AGREEMENT BE REACHED IN MEDIATION?
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.
CAN A MEDIATOR BE A WITNESS OR TALK TO THE JUDGE?
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.