Mediation Frequently Asked Questions
Here are some frequently asked questions regarding the Mediation process:
What is Mediation?
Mediation is a process led by an impartial and neutral third party, called the mediator, to bring parties together with the goal of reaching an agreement on contested issues.
Why Choose Mediation?
Many people, when faced with the prospect of an impending dispute, whether it be divorce, an estate contest or a contract dispute, think first and foremost of going to trial. The thought of appearing before a judge is for many a terrifying ordeal which only adds stress to an already stressful situation. Mediation can be a comforting substitute for the anxiety of the courthouse. The daunting courtroom is, in mediation, replaced by a more collaborative and friendly environment.
What is the Mediator’s Role?
A mediator is not a judge. He does not make any decisions. His primary goal is to assist both parties in reaching an agreement that is to their mutual satisfaction. Unlike judges, mediators often create unique agreements that deviate from the norm because the agreements are tailor made by the parties to fit their circumstances and desires. The mediator differs from the arbitrator in that the mediator can, and in fact is expected to, meet individually with each side. Hearing what each side truly wants out of the process makes the mediator’s job that much simpler, and everyone benefits.
The mediator also stands in contrast to an attorney representing one of the parties because, unlike attorneys, who are taking an adversarial, competitive approach for their clients, the mediator’s job is to help both parties reach a suitable conclusion. Because the mediator can take no action that is binding on the disputants, there is little harm that can come about by choosing mediation. This should give both sides confidence when approaching mediation.
The mediator performs the following tasks:
Facilitates the communication between the parties by making sure each party is given an uninterrupted time to speak;
Asks parties to restate or explain a point when necessary;
Asks questions to make communication clear;
Provides information about the legal system;
Describes how issues may be viewed by lawyers or judges;
Identifies alternatives for solving issues; and
Refers the couple to third party experts for services such as appraisals when it's appropriate.
Will the Mediator Prepare Court Documents?
No, the mediator will not prepare the required court documents at the completion of the mediation. As court documents are adversarial in nature, it would be a conflict of interest for the mediator to prepare court documents, even if it were in the presence of both parties and approved by both parties. The very nature of preparing a court document requires the mediator to be at least somewhat impartial as he or she prepares the documents. In mediation, the mediator must, at all times, remain impartial.
Instead, the mediator will prepare a Memo of Understanding that will capture all of the agreements and document what issues remain unresolved. This document can then be taken to the parties' attorneys to be used in preparing the court documents and readying the parties for the prove-up or final court hearing.
Is Mediation Confidential?
Yes! In fact is is far more confidential than trying to resolve your case in the courtroom! From the time you contact a mediator to ask about mediation until the mediation is over, everything said is confidential. This means that nothing written specifically for the mediation or said during the mediation is subject to discovery (being revealed) in any non-criminal proceeding. Furthermore, the mediator cannot be called to testify about what went on in the mediation in any later non-criminal proceeding. This means you can have complete confidence that what you tell the mediator in private and what is said during the mediation process will not be revealed.
Will Our Agreement be Enforceable?
Once an agreement has been signed, that agreement can be made enforceable as a contract between the two parties in civil cases. In family law cases, such in a divorce, a judgment based on the Memo of Understanding is prepared by the parties (or their attorneys) and filed with the court, and is just as enforceable as any other divorce judgment.
Is Mediation Beneficial for the Children and Families that may be involved?
Yes! The client’s choice to mediate a conflict often has many beneficial effects on any children or family members who may be involved. Mediation is generally less stressful than litigation, allowing for a more peaceful home during the conflict. In addition, children benefit from seeing their parents cooperating, even when they disagree with each other. The cooperation of the parents often leads to more joint custodies being awarded in mediation, benefiting the children with a continued future with both parents. Like many other issues in mediation, parties generally retain more control over their children’s interest and needs than they would if they chose litigation. In the case of estate and probate disputes, once the issue has been resolved, families can return to a better state of normalcy as their issue was resolved in a manner that was far less confrontational than is usually the case in the courtroom.
How is Mediation is Cost-effective?
For many clients, the best reason for choosing mediation will be the cost. Mediation will almost always be less expensive than litigation. While both mediation and litigation can involve experts, such as accountants and real estate appraisers, there is only one mediator; as opposed to two attorneys or more were the parties to appear in court. Mediation is concerned with both parties working together, and doing so can dramatically decrease the billable time owed. Additionally, in most cases the parties will split the mediator’s fees 50/50, further making mediation a very attractive option.
How Popular is Mediation?
Mediation is still a relatively unknown process to the general public, but is growing in popularity very quickly.
What if We are Unable to Agree on Everything?
It is fairly common to reach an agreement on all but one or two issues, but even then, mediation is rarely “wasted time.” A settlement can be drawn up on all the agreed upon issues and then, should the parties later decide to litigate the remaining issues, less time will be spent in the courtroom.
Contact us today to see if mediation may be right for your situation! The call is completely confidential and free and you are under no obligation
Does Mediation Eliminate the Need for an Attorney?
It is always recommended (but not required) that each party retain its own counsel. The issues that are discussed in mediation are extremely important and are legal in nature. Therefore, parties will want to ensure that their legal rights are being preserved. As the mediator is a neutral and cannot offer legal advice, it is always advised that each party retain counsel.