Mediation FAQ

 What Is Mediation?

Mediation is an alternative dispute resolution (ADR) process whereby the parties are assisted by a trained and skilled third party. The mediator facilitates confidential communication, reconciliation and negotiation between the parties to reach a voluntary and mutually agreeable resolution.

 How Is Mediation Difference 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.

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.

 When Is Mediation Useful?

Mediation is effective when both parties want to resolve a disagreement. It is most effective when:

• The Issue involves strong emotional feelings 

• The parties know each other 

• The parties want to maintain their relationship 

• One party is uncomfortable confronting the other side 

• The parties have reached an obstacle in their discussions 

• One or both parties want to avoid costly legal litigation 

• The issue does not involve class action or punitive damages 

 What Kind Of Disagreement Can Be Mediated?

Generally any kind of disagreement can be mediated. 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

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. Mediation is very effective when the parties live nearby or have to maintain their relationship on a day-to-day basis. 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 amiable relationship and to explore ways to prevent disagreements from arising in the future. Mediation allows the parties to maintain control over their decision making rather than letting a judge decide. 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. 

 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 Most Important Aspects Of Mediation?

Aside from low cost and high success rate, mediation provides four 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 suppositions 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 objecting that what you're saying is inadmissible for some reason. 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 social relationships of long standing 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 done to create the disagreement. Remember, its takes two to tangle. 

Speed. Resolution for most disagreements is usually achievable within a day or two and no longer than 30 days. More complex disputes and conflicts may require more time and communication to explore the interests and positions involved. 

 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.

 Who Wins, Who Loses In Mediation?

In theory, no one loses; everyone wins. 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, reconfirm their interests and to explore solutions. Whatever is agreed upon is mutual and neither party is forced to agree anything which they do not want. However, common sense teaches use that closure is important and sometimes we must bend a little to get what we really need.

 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 legal 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. If legal representation has already been secured, it is not too late. Most cases settle before trial, so it's almost never too late to mediate. Most legal professionals and courts advise mediation before litigation.

 Who Can Request Mediation?

Anyone can. Mediation is available to everyone with a disagreements seeking closure.

 What Goes On At A Mediation Session?

Within a mediation session, two types of meetings can occur. First, the joint session. 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 to meet 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 meditations 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. 

 What Does The Mediator(s) Do, During The Mediation,?

Traditionally mediation is conduct by a single mediator. However, co-mediation or a panel of three mediators is becoming commonplace. Co-mediation and panel mediation allows each party to select a mediator instead of mutually agreeing on a single one. 

At the Initial Session:

- Assess whether and how to intervene with the Parties

- Creates a comfortable environment for communication

- Invites parties to participate, to share their thoughts and concerns 

- Establishes the purpose, structure and guidelines of mediation with the parties. 

Throughout the Session: 

- Helps each party to feel heard, respected and acknowledged

- Identifies the key issues that parties need to address and the interests influencing these issues

- Outlines the issues and interests so they can be visually seen 

- Continues to create an ambiance of safety and dignity 

- Helps keep the process focused and forward moving 

- Manages emotions and communication styles 

- Deals with unproductive power dynamics and egos 

- Encourages risk taking 

- Facilitates an effective negotiation process

- Sorts out personal and emotional impasses and position obstacles. 

During the Resolution Process: 

- Encourages creativity and out-of-the-box ideas

- Helps parties brainstorm solutions with each other

- Helps each party think through their options

- Establishes vocabulary words of potential agreements 

- Discuss how agreed resolutions can be implemented 

- Drafts a Resolution Agreement to be reviewed 

- Finalizes Resolution Agreement in writing signed both parties 

 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.

 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 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.

 If I Don’t Bring A Lawyer Can I Bring Someone To Help Assist Me?

Yes, if there is no objection from the other party. As with lawyer, your assistant is present to help you fully understand what takes place and what is discussed in the mediation session. Your representative (lawyer or non-lawyer) does not speak for you. Mediation is not court. Each party must present their own ‘case’ and clearly define their position and interests.

 Is Mediation Legally Binding?

The mediation process is voluntary, however in many Judicial Systems the mutually agreed and signed resolution agreement is binding and legally enforceable by virtue of specific language included in the executed agreement reached between the parties. This should be discussed with a lawyer prior to 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.

 Must An Agreement Be Reached In Mediation?

No, party is not 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 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. 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.

 What Should I Know About A Mediator Before Choosing One?

You should approach hiring a mediator just like you would any other professional. Speak with many mediators to get a feel for their style and approach to the process. In addition, ask questions about the following:

- Training, experience and background;

- Experience or knowledge in mediating the type of issues you have;

- Fees charged and how fees are divided among the parties to the mediation; 

 What Are The Advantages Of Mediation Over Litigation?

- Timely resolutions

- Reduced legal costs 

- Privacy and confidentiality of issues and parties

- Preservation of relationships 

- Reduction of court back-logs 

- Less intimidating process than litigation 

- No cross examination 

- Control over the proceedings 

- Opportunities for disputants to express their interests

- Limited compromising of legal rights 

 Are There Different Types Of Mediation?

Yes. The role of the mediator is a bit different in each type and most mediators utilize a combination of these types. 

Facilitative Mediation: In a facilitative mediation, the mediator will take an active role in controlling the "process." The mediator asks questions to identify the interests of the parties and the real issues in the disagreement. The mediator helps the parties explore solutions that benefit both parties. In a facilitative mediation, the mediator does not offer an opinion on the strengths and weaknesses of the parties' cases. The mediator does not suggest solutions. 

Transformative Mediation: Transformative mediators try to change the nature of interaction by a) helping each party appreciate each others viewpoints; and b) by strengthening each party’s ability to handle disagreement in a productive positive manner. The mediator will intervene in the conversation between the parties in order to call attention to moments of recognition and empowerment. Ground rules for the mediation are set only if the parties set them. The mediator does not direct the parties to topics or issues. Instead, the mediator follows the parties’ conversation and assist them to talk about what they think is important. The transformative mediator does not offer an opinion on the strengths or weaknesses of the parties’ cases. The mediator does not suggest solutions.

Evaluative Mediation: Evaluative mediators use their expertise to focus and assist parties: a) to assess the strengths and weaknesses of their legal or other positions; and b) to achieve settlements. In evaluative mediation, the mediator controls the process and suggests solutions for resolving the conflict. Individual meetings between the mediator and one party at a time (caucuses) are a major component of evaluative mediation. The focus of an evaluative mediation is primarily upon reaching a settlement. The mediators will make their best efforts to get the parties to compromise, if necessary, to achieve a result. 

Conciliation: This process is similar to mediation but the conciliator acts more as an 'inventor' of solutions which are presented to the parties with a view of getting them to agree as to how the disagreement can be resolved. The conciliation mediator frequently provides suggestions and out-of-the-box ideas. Conciliation differs from mediation in that the main goal is to conciliate, most of the time by seeking concessions. Generally there is a mixture of fact-to-face and private caucuses sometimes referred to as ‘shuttle diplomacy’. The conciliator meets with each party to separately prioritize a list of interests from most to least important. Then goes back and forth between the parties and encourages them to "give" on the issues one at a time, starting with the least important and working toward the most important for each party in turn. The parties rarely place the same priorities on all objectives, and usually have some objectives that are not on the list. The conciliator builds a string of agreements and help the parties create an atmosphere of trust which the conciliator can continue to develop into a ‘total’ mutually agreeable resolution. 

Evaluative Mediation: Evaluative mediators use their expertise to focus and assist parties: a) to assess the strengths and weaknesses of their legal or other positions; and b) to achieve settlements. In evaluative mediation, the mediator controls the process and suggests solutions for resolving the conflict. Individual meetings between the mediator and one party at a time (caucuses) are a major component of evaluative mediation. The focus of an evaluative mediation is primarily upon reaching a settlement. The mediators will make their best efforts to get the parties to compromise, if necessary, to achieve a result. 

Conciliation: This process is similar to mediation but the conciliator acts more as an 'inventor' of solutions which are presented to the parties with a view of getting them to agree as to how the disagreement can be resolved. The conciliation mediator frequently provides suggestions and out-of-the-box ideas. Conciliation differs from mediation in that the main goal is to conciliate, most of the time by seeking concessions. Generally there is a mixture of fact-to-face and private caucuses sometimes referred to as ‘shuttle diplomacy’. The conciliator meets with each party to separately prioritize a list of interests from most to least important. Then goes back and forth between the parties and encourages them to "give" on the issues one at a time, starting with the least important and working toward the most important for each party in turn. The parties rarely place the same priorities on all objectives, and usually have some objectives that are not on the list. The conciliator builds a string of agreements and help the parties create an atmosphere of trust which the conciliator can continue to develop into a ‘total’ mutually agreeable resolution. 

Expert Determination: Historically, this form of mediation has been used when the parties have strong defined positions that need to be subjected to an ‘expert’ or panel of experts to evaluate their positions, define the specific interests and help craft a suitable solution. The expert mediator(s) are very knowledgeable and possesses years of expertise in the area of the disagreement, dispute or conflict. Both parties of the mediation respect and trust the mediator(s) to help them resolve their differences and craft a solution that will be mutually beneficial to them and to their particular field or industry. Often the mediation details are not confidential, except for trade secrets, as industry policies and guidelines are often determined. The mediator(s) is empowered to make a settlement and/or policy which may or may not be agreeable to either party.

 How do I Get 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.

 Have questions or Comments ?

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