Is Mediation Always A Good Choice?
No. Mediation is not for all parties. In most cases, mediation can be very helpful. The mediator will assist the parties in determining whether mediation is the correct avenue for them.
When Should Mediation Be Considered?
Mediation should be considered when the parties have not been successful in negotiating with each other or have reached an impasse.
How Can Mediation Work If We Are Deadlocked?
The mediator is experienced and formally trained to assist in exactly these types of matters. The mediator is able to meet individually with each party and give a neutral and impartial third party perspective on positions that have deadlocked the parties. By careful questioning and listening, the mediator will identify the barriers that are preventing the resolution of a conflict.
Does The Mediator Provide A Written Agreement?
Yes. The mediator will provide a finalized document that has been mutually agreed to by the parties. This document is referred to as a memorandum of understanding (MOU). A copy of the MOU will be provided to each party and each party’s attorney. In most cases, the MOU will be able to be incorporated into the legal filings, or be adapted with only minor changes by the parties’ attorneys.
Can I Trust Mediation To Be Fair?
Yes. The mediator is impartial and neutral and will not favor the interests of one party over the interests of the other party. The mediator is ethically obligated to separate personal feelings and not favor a particular resolution in any conflict. The responsibility of the mediator is to assist the parties in reaching a voluntary and informed agreement, and assure that each party has not been coerced or overpowered by the other party.
Is The Mediation Confidential?
Yes. The mediator will assure the parties that everything that happens in the mediation is confidential. The discussions and all materials developed during a mediation are not admissible in any subsequent court proceeding, except for the final agreement mediated between the parties. The mediator will not discuss anything that happens with anyone outside of the mediation without first securing the permission of the parties. While confidentiality in a mediation can be waived in writing by the parties, the mediator may retain an ability to refuse to testify in any matter.
How Is The Mediator Selected?
The parties considering mediation will have an initial consultation with the mediator. During this consultation, each party will have an opportunity to interview the mediator separately and determine whether they are comfortable with the mediator. In some cases, the mediator may not be comfortable with one or both parties and decide to not mediate the matter between the parties.
Do I Have To Continue In A Mediation?
No. Either party can decide to end the mediation proceedings at anytime for any reason, or for no reason.
Do I Lose Any Rights If I Choose Mediation?
No. If mediation is not successful for you, you are free to pursue another type of dispute resolution. Parties to a mediation do not lose any rights to go to court if the mediation process is not successful and they are not able to reach an agreement.
What Do I Look For In A Mediator?
There are no specific requirements for a person to call themselves a mediator. Therefore, parties seeking mediation should look for a mediator who has had formal training and has had several years of experience in negotiations and resolving conflicts. A mediator will typically have a law degree and a degree in counseling or a similar discipline. The mediator should demonstrate a commitment to the mediation field by having memberships in professional associations that support alternative dispute resolution (i.e., mediation).
Does A Mediator Follow Standards Of Conduct Or Practice?
Yes. Mediators will follow the Ethics, Standards of Practice, and Standards of Conduct established and recommended by the professional associations that they belong to. A mediator who is a licensed attorney will belong to the American Bar Association and be a member of the Dispute Resolution section. The mediator should also be a member of the Association for Conflict Resolution.
How Does Court Mediation Compare To Private Mediation?
Court mediation may be free to the parties or be based on an ability to pay. The court assigns a mediator and will limit the time that the mediator is compensated for each mediation. In private mediation, the parties select the mediator, and the mediator is usually very flexible in regard to the number of sessions, the length of the sessions, and locations where the meetings are held. In private mediation, you pay the mediator an hourly fee.
Are Children Or Family Members Involved In Mediation?
This is a decision the parties need to agree upon, and depends upon the ages of your child(ren). A child(ren) will have concerns about their parents and being involved can be reassuring and have a calming effect. Also, a relative can be of assistance in mediation if one party is having difficulty with their role in the mediation process.
Does My Attorney Attend The Mediation Meetings?
Mediators usually prefer to not have attorneys attend the mediation meetings. The mediator’s role is to assist the parties in interacting with each other in resolving their conflicts, and in some cases the presence of additional parties can inhibit this process. Most attorneys also prefer to allow the mediator to conduct the mediation and to only receive periodic updates in regard to the progress of the mediation.
Do I Still Need An Attorney?
Yes. While mediation can assist the parties in resolving their conflicts in a mutually acceptable agreement, both parties are advised to have the agreement reviewed by their attorney.
Are The Mediation Meetings Convenient?
In most cases, the mediator can assist the parties in scheduling meetings that are convenient to their schedules. This can include evenings or weekends, if necessary.
