Mediation FAQ’s
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1. What exactly is mediation anyway?
2. What if I don’t trust the other side, or believe they will cooperate?
3. I don’t want to discuss everything in front of the other side!
4. I am NOT going to change my mind.
5. How do I choose or even find a mediator?
6. Mediation is an added expense. My lawyer says
it is a waste of time.
7. Do I need a lawyer? Can I bring my lawyer?
8. What if my case involves violence?
9. What if no agreement is reached in mediation?
10. What is arbitration?
11. Does Mediation Apply Only to Legal Disputes?
12. Is Mediation confidential?
13. Who is Present During the Mediation?
14. Who Determines the Outcome of a Mediation?
15. What Happens if an Agreement is not Reached?
16. When is the Best Time to Look into Mediation?
1. What exactly is mediation anyway?
Mediation is an informal process in which all of the parties involved in a dispute meet with a mediator (a neutral third party) and discuss what happened, and how they would like to see the situation resolved. All parties need to agree to participate because mediation is voluntary. Courts sometimes mandate that parties attempt to mediate, but agreement is not mandated. Showing up and trying is all that is required to meet this mandate.
Mediation begins with the mediator explaining his or her role and how the process works. Mediators do not give legal or financial advice. They facilitate the conversation and assist the parties in reaching an agreement. Mediators work with the parties to help them communicate their needs or desires. Mediators do not make decisions for you or impose consequences. Each person involved in the conflict has a chance to talk, sharing thoughts, feelings, wants, interests, and needs. Sometimes venting emotions clears the air for progression toward a resolution. In court, parties or their attorneys present only the facts to the case. Although someone wins and someone loses this doesn’t mean that anyone feels satisfied or that the issues are resolved.
If an agreement is reached in mediation, it is put in writing and signed by the participants. Any signed agreement can affect a party’s legal rights in the future. In other words, you are most likely bound to your mediated agreement if you attempt to go further in a court proceeding. If no agreement is reached then pursuing the situation in court is a valid option.
Mediation is confidential. Mediators are not to reveal names of parties involved or aspects of the situation unless someone threatens physical harm to themselves or someone else during the mediation process. In the event violence is threatened, mediators do not volunteer to be witnesses in court proceedings. In fact, participants typically sign a waiver. The waiver says that a party “waves his or her rights to subpoena the mediator or any written work prepared for or in the course of the mediation,” or something similar.
2. What if I don’t trust the other side, or believe they will cooperate?
The mediation process often encourages parties to begin to trust one another. Mediation offers you the opportunity to express what you need and desire. The mediator assists people in both sharing and hearing the actual message intended in a positive tone. As communication improves, understanding and trust follow. When negative emotions begin to diminish and trust develops, cooperation improves.
3. I don’t want to discuss everything in front of the other side!
Not a problem. Part of the mediation process includes caucusing or private meetings. This is when the mediator meets individually with each party or groups with the same position. Anything discussed in caucus remains between the mediator and parties present unless the parties choose to share the information or invite the mediator to do so for them.
4. I am NOT going to change my mind.
Mediation does not require that you change you mind. It does offer you the chance to express yourself and listen to the other person(s) involved in the dispute. It is an attempt to find a resolution through clear communication. The mediator is neutral and will not impose a resolution or make decisions for you!
5. How do I choose or even find a mediator?
Ask friends if they have had a good experience with a mediator, or check with your attorney. You can also search the internet or yellow pages.
When choosing a mediator consider his or her level of alternative dispute resolution training, a mediator should have a minimum of 100 hours. Many programs requires that a mediator take an approved General Training and/or Domestic Training course.
Next, consider the level of expertise. You may prefer to start with someone having at least two years experience and someone having mediated at least 100 cases. Education is actually less important because mediation is a profession based more on skills than academics. However, you may prefer a minimum of a bachelor’s degree or at least a certificate from a particular course of study.
*Do not reject a mediator just because “the other side” recommended them. Do your own research.
6. Mediation is an added expense. My lawyer says it is a waste of time.
Mediation can actually reduce your costs. You are not required to have an attorney present and there are no hidden fees. There are no filing fees or witness fees. Results are usually achieved with a lot less emotional out lay and are quicker than court proceedings.
Mediation is not a waste of time unless you do not fully participate by listening to what the other parties say. No agreement is imposed or forced. A better understanding of the other participants may lead to an agreement in the future. At the very least, all parties have the chance to fully express feelings, wants, interests, and needs without interruptions, which is not appropriate in court.
7. Do I need a lawyer? Can I bring my lawyer?
Lawyers are welcome, but not necessary. Only you can decide if you wish to have counsel present. If you want unlimited access to legal advice, feel safer or stronger with counsel present, bring your attorney. However, keep in mind you will need to pay him or her for their time. You may prefer to ask your attorney if he or she is willing to be available by phone to check in and run things by him or her. Some attorneys prefer to be present whenever clients mediate, especially in divorce cases, while others only attend mediation if violence is an issue.
8. What if my case involves violence?
Court-referred mediations are done for cases involving simple battery, assault, aggravated assault, rape and domestic violence, although, some of these cases are inappropriate for mediation. If you are in a divorce and domestic violence has been alleged, be certain the mediator used is trained in domestic violence. A mediator should be notified in advance to arrange an appropriate meeting space such as the courthouse where sheriffs are present. If it is another issue that involves violence or threats of violence be certain to make the mediator aware of the allegations. Also be certain to use a very experienced mediator.
9. What if no agreement is reached in mediation?
Mediation does not remove your rights to go to trial. If no agreement is reached you can still proceed through the regular court procedure or you might choose to arbitrate your case.
A process in which a neutral individual or panel listens to the issues in the dispute and render a decision regarding liability and damages. Voluntary arbitration allows the parties to select the individual or panel. Generally, the cost is split equally. Non-binding arbitration allows parties to refuse the decision and move on to the court process. Binding arbitration generally means that neither party can appeal the decision nor take it into court.
11. Does Mediation Apply Only to Legal Disputes?
No, mediation can be, and is, used to resolve conflicts between family members, business owners, landlords and tenants, neighbors, and employers and employees. Often, these conflicts revolve around personal differences and miscommunications rather than legal issues. The negotiation orientation of mediation makes mediation ideal for resolving these and other nonlegal disputes.
12. Is Mediation Confidential?
Yes. Mediation provides two layers of confidentiality. First, the process, by its nature, is deemed confidential. Second, the parties have the ability during the mediation to meet with the mediator separately. In these separate sessions, the parties are able to share information with the mediator that they might otherwise not want to share with each other. The mediator is obligated to keep this information private, unless the party expressly grants the mediator permission to share that information with the other party.
13. Who is Present During the Mediation?
One of the most wonderful benefits of mediation is its flexibility. Parties are free to have consultants, accountants, attorneys, or whomever they desire present during the mediation. Of course, all individuals must abide by the terms of confidentiality that govern the mediation process.
14. Who Determines the Outcome of a Mediation?
The parties determine their own solutions. Studies show that this is one of the reasons so many people find mediation more satisfying than any other method of conflict resolution. Through mediation, the parties are able to communicate directly with one another and to gain understandings they might not have obtained otherwise. They are empowered to arrive at their own solutions, rather than being subjected to a decision imposed on them by the “Law”, a judge, or a jury. After all, it is the parties who are the experts on the situation at hand, and it is they who are most qualified to decide what outcome is in their best interests.
15. What Happens if an Agreement is not Reached?
There is very little downside to mediation, even if an agreement is not reached. The process is voluntary, and if it is not progressing, usually becomes clear early in the process. From this perspective, very little expense is incurred because the mediations that do not reach agreement generally terminate rather quickly. Sometimes parties worry that, if an agreement is not reached, they will have “played their hand.” One need not play his/her “hand” because parties in mediation always have the ability to call a private session. Also, even in litigation parties are forced to “play their hand” under our rules of discovery and disclosure, which are more liberally construed today than ever.
16. When is the Best Time to Look into Mediation?
Mediation is appropriate at any stage of conflict! It is never too late! Some parties use mediation proactively. For instance, if parties anticipate a problem arising in the near future, they may use mediation to facilitate a dialogue and agree ahead of time as to how that problem will be handled. Other parties insert mediation clauses into their agreement, providing for the mediation of future conflicts. One other method of providing for mediation on an ongoing basis is to hire a mediator on retainer for disagreements that may arise over the course of a designated period of time. Most often, parties contact a mediator when they recognize a conflict has arisen and is not going to go away. When this happens, it is never too late to propose mediation. There is very little to lose in doing so, and so much to gain. Repeatedly, parties surprise one another and, even in the midst of litigation, engage in mediation to a successful agreement.
