Frequently Asked Questions
- What is Mediation?
- How does Mediation differ from other methods of dispute resolution?
- What are the benefits of Mediation?
- How is information gathered in Mediation?
- How do the parties and the mediator work together?
- Must an agreement be reached in Mediation?
- If the parties reach an agreement through Mediation, what is next?
- Do I have to have a consulting attorney in Mediation?
- Who should consider Mediation?
- What do I do if I want to mediate?
1. What is Mediation?
Mediation is a method of resolving a legal dispute in which a neutral professional assists the parties to settle the dispute. Generally, the parties agree that all information will be shared and that they are seeking a “win-win” solution. The parties work directly with each other to resolve the dispute. While the mediator provides assistance, the parties are primarily responsible for information gathering and analysis. The mediator does not represent either party and the parties do not go to court. Often, the mediation does not include attorneys except in a consulting or reviewing capacity. However, in some cases, mediation includes both parties and attorneys. Mediation can work well for parties who have the ability to communicate their needs directly to the other person and who are sophisticated enough to understand the information being provided.
2. How does Mediation differ from other methods of dispute resolution?
In the traditional legal approach, the parties retain attorneys whose focus is to prepare a picture of “reality” which will result in the best decision for their client by a judge. Often, this method includes denigrating the other party or his/her perception of reality. Trial is often compared to a battle, in which the best side “wins.” In some circumstances, litigation is the only option. For example, if the other party consistently hides information or is abusive, the formal procedures utilized in litigation may be the tools necessary to obtain an acceptable solution.
In the Collaborative Practice approach, the parties retain collaborative attorneys whose job is to assist them in reaching a mutually agreeable resolution. The parties and attorneys agree to work respectfully and in good faith to gather all information needed to reach an agreement. The parties and attorneys agree that they will not go to court during the time they are working towards settlement. If they are unable to reach an agreement, the attorneys withdraw and litigation attorneys take the dispute to court. Collaborative Practice works well when the parties hope to settle out of court, but one or more parties desire the active assistance of an attorney during the settlement process.
3. What are the benefits of Mediation?
Mediation usually provides a quicker, more cost effective and more satisfactory outcome than litigation. While it may take months, or sometimes years, to resolve a dispute in court, mediation can be paced according to the parties’ needs. Because mediation is voluntary and requires both parties’ agreement to the final resolution, parties are usually more satisfied with the outcome than with a decision made by a third party.
This results in a higher likelihood of compliance with the agreement since parties are usually more likely to comply with a solution to which they agreed. In addition, parties are able to customize the solution to meet their needs rather than being constrained by the limited options available in court. Finally, parties who mediate are more likely to preserve an amicable relationship in the future, which is particularly important in families with children.
4. How is information gathered in Mediation?
The parties do not engage in expensive legal procedures to obtain information. The parties rely on each other to act in good faith and produce all necessary information and documents voluntarily and in a timely fashion. Sometimes, the parties will agree to jointly hire an expert to provide them with more in-depth information.
5. How do the parties and the mediator work together?
The normal procedure is for the parties and mediator to meet together, at a frequency determined by the parties. The initial meeting(s) include making any necessary interim arrangements, such as regarding children or finances, and exploring what information needs to be gathered. The parties then gather and share information and documents with each other and the mediator. The parties and mediator meet again to brainstorm possible solutions and reach agreements.
During the meetings, one of the mediator’s roles is to facilitate communication between the parties. Sometimes parties have developed negative communication patterns which impede their ability to speak out or hear each other. The mediator works with the parties to ensure that each party is fully informed about the issues and about the interests and needs of the other party. The mediator is also a resource for helping the parties to create options, which may include options not available in the traditional legal system. The mediator may raise issues that haven’t been addressed and may provide information about the court process and the law.
In addition, the parties sometimes decide to engage the services of other professionals as consultants to provide other necessary information. For example, the parties may jointly engage an appraiser to provide them an opinion regarding the value of an asset. Or parents may decide to consult with a co-parenting counselor to assist them in working on parenting arrangements or difficulties.
6. Must an agreement be reached in Mediation?
No. All parties must agree to the solution. No party is forced to accept a solution that does not meet his or her interests and needs. The parties understand that the goal is to fashion a solution that comes as close as possible to a “win-win” agreement, while recognizing that they won’t receive everything on their “wish list.”
7. If the parties reach an agreement through Mediation, what happens next?
The mediator will draft a written settlement document to memorialize the parties’ agreement. This agreement is reviewed by each party’s consulting attorney. Once the final form is agreed upon, one of the consulting attorneys finishes processing the necessary legal forms to obtain a legal judgment. The mediator can also assist the parties in preparing the necessary legal forms to represent themselves in obtaining the final judgment. A court hearing is not required.
8. Do I have to have a consulting attorney in Mediation?
No, you are not required to have an attorney. However, most parties in mediation prefer to have a consulting attorney to be available to answer questions that may come up during the mediation. In addition, the attorney can clarify information provided by the mediator or provide another perspective. The consulting attorney can also review the agreement to be sure it accurately describes the agreement reached, is clear and enforceable.
9. Who should consider Mediation?
Mediation works best for parties who wish to settle without going to court and are willing to commit to a good faith effort to do so. Parties to a mediation must be willing and able to openly share all information necessary to resolve the dispute, including their interests and needs.
In Mediation, you maintain control over your decision making rather than letting a judge decide. You can also 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 in obtaining temporary orders or at trial.)
People in conflict often have continuing relationships with each other, as co-parents, business colleagues or through their circle of friends and relatives. Mediation will increase the possibility of maintaining a civil or even cordial relationship with the other person after the resolution of the conflict.
You should also consider Mediation if you are seeking a cost effective way of resolving your dispute. Mediation is often the least expensive approach to reaching an agreement.
10. What do I do if I want to mediate?
You will need to find a qualified mediator with appropriate training and experience. You and the other parties can set up a joint meeting to interview the mediator and ensure that all of you feel comfortable and trust that the mediator can assist you in reaching an agreement.