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FAQ ABOUT MEDIATION
Diane Manwell

Excerpted From "A Practical Guide To Family Mediation For The Divorce Lawyer, Mediator, and Client" see related products below.

What is Mediation?

Family Mediation is a voluntary process through which an independent, impartial person -- or persons -- helps individuals who are having conflicts and disagreements discuss and negotiate resolutions. Because all parties must agree on a final mediation solution which resolves a dispute, mediation is different from arbitration in which a third party acts as a private judge and makes a decision. It is also different from litigation where lawyers for the parties argue in front of a judge or jury who makes the decision.

The mediator is supposed to be a bridge between the parties who helps redirect discussions to allow an understanding by both parties. Each mediator should be oriented toward teaching the parties to build a road together so that it is no longer necessary to use the mediator. Mediators should try to set the stage for more constructive communication by the use of reflective listening techniques. At the same time a mediator may make suggestions if parties reach an impasse or are stalled in the process of mediation. Since the decision rests ultimately on both individuals, the mediator should neither encourage nor coerce participants to accept or refuse an agreement. And mediators should be sufficiently attuned to power imbalances to help "shore up" the imbalance.


Why should you consider mediation?

A) To increase the odds of an agreement.

The people involved in a marital dispute -- or the nature of the problem underlying a marital dispute -- can make it difficult to reach a resolution. The energy spent on fighting leaves little strength for negotiating effectively and solving the problem.

Mediators can improve the parties' communications and help them focus on the real issues with a productive, creative approach and can encourage parties to explore their interests carefully and search for all possible options. Appropriately using mediators can increase the likelihood of a negotiated settlement by bringing the skills, creativity, and influence of trained, impartial third parties to bear on the problem.

B) To save time and money.

When you can't reach a negotiated settlement without assistance, you may feel that filing a lawsuit is your only alternative. The litigation process can be expensive and time-consuming. And there are no guarantees of positive outcomes when you go to court where you risk allowing someone else (a judge or jury) to impose a decision on you.

Even after you file a lawsuit, statistics show that 80 to 90 percent of court cases settle before trial. Unfortunately, many of these settlement occur only after the parties have expended significant amounts of money and time in the process. Many of these risks of losing time and money can be avoided if you are able to negotiate a solution directly and retain control over the outcome..

Mediation before filing a lawsuit -- or after filing, but before engaging in heavy-duty litigation -- is like trying medication to treat a health problem before you have surgery. Litigation, like surgery, is a more extreme choice involving additional cost, time, and risks.

C) To keep your options open.

If mediation doesn't work, you can still sue and go to court. Because mediation is totally voluntary, if it's not working, any party can end the process and move promptly into litigation or exercise another option.

D) To reduce emotional costs.

Not only is litigation expensive and time-consuming, but it can be very stressful. You may feel that an important part of your life is on hold while you are waiting for a trial date, wondering and worrying about the outcome. If the parties to the conflict are likely to have to deal with each other in the future, using an adversary process like litigation risks polarizing and embittering their relationship. The emotional wounds from fighting may never heal, and these wounds can complicate the parties future dealings and make it impossible for them to have a satisfactory relationship.

E) To develop satisfying, lasting agreements.

Because the parties know their needs better than anyone else, if they can work together, they have the opportunity to customize a negotiated resolution for their unique situation. Judges and juries don't have any special wisdom or insight that lets them understand the practical and psychological needs you have in your family, school, and business affairs. Also, they may be restricted by legal rules that prevent them from addressing all aspects of your conflict to develop a real solution. In mediation, there are no arbitrary rules that limit your ability to deal with the whole picture. Your agreement can cover both legal and non-legal issues and can be more creative, comprehensive, and on-target than an outcome reached through litigation.

F) To increase compliance.

It is natural to resent decisions imposed on us by others with power -- legal or not. The goal of mediation is to reach an agreement that everyone can live with after all parties have a direct role in negotiating the terms along with a chance to clear the air. When the parties participate in this way, they tend to have not only a sense of legal obligation towards the agreement they reached, but also a psychological sense of commitment because it is their very own agreement as well. When people voluntarily agree to undertake an obligation, they are more likely to follow through in good faith.

G) To protect your privacy.

Mediation is a private process. there is no lawsuit filed at the courthouse and listed in the newspaper for friends, employees, bankers, reporters, creditors or others to notice, wonder about, and discuss. There are no hearings and trials open to spectators. In some disputes no public record of any kind may be necessary.

What should you expect from mediation?

The mediator schedules an initial session with all the parties to answer any questions about the process, to help everyone decide whether to mediate, and if so, to sign a mediation agreement (a sample mediation agreement is on this web site and in "A Practical Guide To Family Mediation For The Divorce Lawyer, Mediator, and Client."

If everyone decides to sign the mediation agreement, the issues are explored at the initial session. Additional sessions are one to two hours each and are usually scheduled one to two weeks apart. Many conflicts can be resolved in two to four sessions. Cases involving complex issues and cases with angry, polarized parties often take longer. Generally, the mediator will meet with all parties together in sessions. Where bitter feelings make it difficult for the parties to communicate, separate meetings allow the mediator to act as a buffer and keep the parties from escalating the conflict.

The role of the mediator is to move the parties beyond personality clashes and historic grievances. Only then can the mediator help the parties improve communication so any future dealings can take place without repeating the difficulties of the past. Mediation is a useful tool works because it adds a new dimension to the negotiations.

What are the ground rules for mediation?

The rules are included in the mediation agreement that the parties sign. They cover such basic areas as entering the process with an open attitude, maintaining privacy, refraining from subpoenaing the mediator or her records, and making full disclosure of relevant information. In addition, specific rules can be added by the parties depending on the nature of the dispute.

Should Mediating Parties Be Represented by Lawyers?

Because the mediator should not advise either party about the law or other matters of substance, it is best that each party be represented by a skilled matrimonial lawyer.

What does mediation cost?

Mediators' fees vary a great deal per case. Generally mediators charge by the hour and according to their profession. Some mediators have a sliding scale based on both client's combined gross annual income. Time generally includes the work in mediation sessions, phone conferences, preparation between mediation sessions, and preparation of documents. If the case involves out-of town travel, discussion regarding the additional charges and time spent is on a case-by-case basis.

How can I keep down the cost of mediation?

To take advantage of the mediation process while minimizing the cost, you must be willing to treat mediation as a priority in your life. Prepare carefully for each session. Promptly gather all of the information requested and keep your agreements to check with other people or produce documents. If you need to consult with your lawyer or tax advisor, do this promptly so you are ready to deal with the issue and make a decision. The more leg work and homework you are willing to do between sessions, the faster the process can move along.

Again, because of the legal issues involved, and because the mediator should not give either party legal advice, it is important to have a lawyer available to you to deal with these issues and to make sure you are protected legally.

Are there any cases that shouldn't go into mediation?

Although mediation does work, even in difficult and unlikely situations, it isn't a magic panacea. When one or more of the parties is intent on causing physical, financial, or emotional harm to the other, mediation is probably not appropriate. This is particularly true if there is recent history of physical violence and intimidation. If any of the parties have serious, ongoing dysfunction, such as alcoholism or drug addiction, they may not have the level of responsibility required by the mediation process. If one party has significantly more power than the other, it may be difficult to build a fair negotiating process. Yet, generally, any time the parties will be dealing with each other in the future, whether by choice or out of necessity, mediation should be considered as a way to increase the possibility of cooperative future dealings. The importance of the future relationship may justify some risk, even when one or more of the factors just listed are present.


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