Frequently Asked Question About Mediation
What is mediation?
Mediation is a voluntary process in which the parties to
a dispute are aided in their face-to-face settlement negotiations
by a trained, impartial, neutral third-party, the mediator.
In mediation the parties control the outcome. Mediation
enables the parties to communicate their perceptions, feelings
and information directly to one another in a safe, controlled
environment. This often reduces hostility and facilitates
rational discussions. The outcomes of the mediation is not
limited to the legal outcomes of litigation or arbitration,
and are often extremely creative. Between 80% and 85% of
disputes mediated are settled!
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How long will the mediation
take and how much will it cost?
Unfortunately, it is hard to predict with precision how
long a mediation will take or how much mediation will cost.
These issues depend primarily on the complexity of the issues
in dispute and on how agreeable the participants are. Since
the mediation fees are based upon an hourly charge, the
cost of a comprehensive agreement will depend upon the time
required to reach settlement. Once there is a better understanding
of your particular situation, time and cost estimates can
be provided.
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Who pays for mediation?
Responsibility for mediation fees is an issue to be decided
by the mediation participants. Participants are encouraged
to consider sharing fees so that everyone benefits from
expeditious and economic resolution.
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What if we already agree
on lots of issues?
Fantastic! The first thing that we want to do in mediation
is to identify what you already agree on. We will use those
points of agreement as a foundation for your overall Agreement.
The standards that make sense to you on certain "easy"
issues can often be applied to resolve other issues. We
will want to be sure that your Agreement is well-informed
and that you are aware of the many issues that you may want
to consider. What is included in your Agreement is up to
you. Our goal is to support your well-informed decision-making.
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What are our chances
for success?
The success rate for mediation is high, since it is a voluntary
process and most participants are highly motivated to reach
agreement. It is estimated that between 80% and 85% of mediating
parties reach comprehensive resolution.
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What If we don't reach
agreement?
In mediation, all discussions and materials, with very few
exceptions, are confidential. If no mediated Agreement is
reached, evidence of the mediation discussions, mediation
materials and any draft mediation resolution will not be
admissible in court or any other adversarial proceeding.
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What about individual
attorneys?
It is common for legal counsel to be present during the
mediation sessions. Although this can add to the cost of
the mediation, it is desirable if it creates the level of
confidence necessary to allow the parties to understand
their legal rights and to comfortably negotiate and make
settlement decisions.
When parties do not have legal counsel present at the mediation
sessions we advise them to have any Mediated Settlement
Agreement reviewed by their individual legal counsel prior
to signing that Agreement. We also recommend that the parties
obtain individual legal advice prior to the mediation session(s),
to insure that they are aware of their legal rights. Throughout
the mediation process the parties should obtain advice on
legal issues, as required. This level of consultation will
dramatically elevate your comfort and confidence in the
final mediated agreement.
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What about utilizing
experts?
It may make sense, in a particular case, for mediation participants
to retain mutually trusted experts. For example, participants
may desire a valuation of real property, personal property,
a business, or the like. It is also not uncommon for mediating
parties to choose to jointly consult with an accountant
or tax expert. In Family Law matters mediation participants
with parenting concerns may find it beneficial to obtain
the thoughts and recommendations of a trusted child psychologist
or other mental health professional. Mediation participants
may choose to jointly retain an impartial advisory attorney
who, based upon an agreed-upon set of facts, may render
an advisory, non-binding opinion on how a court might resolve
certain Identified issues.
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How do we initiate mediation?
If all parties have already agreed to mediate, simply call
me to discuss preferred dates and locations. If you wish
my assistance in obtaining the agreement of others to mediate,
call or send us the name, address, and telephone number
of the attorney or other representative of each party whose
participation is necessary for a comprehensive resolution.
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If a lawsuit has been filed,
can we still request mediation?
Absolutely! Mediation is a voluntary process which can be
initiated at any time, so long as the parties agree. Because
of high probability of resolution through mediation, most
judges will encourage use of mediation if asked.
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If binding arbitration
is written into a contract can we still use mediation?
Yes! Since mediation is a voluntary process, so long as
you obtain the agreement of the parties who will be participating
in the mediation, you may utilize the mediation process
with any mutually acceptable mediator.
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How do we prepare prior
to mediation?
It is important to insure that all decision makers necessary
for settlement of the dispute are present at the mediation
sessions
When appropriate, information can be exchanged in advance
of the mediation session to assist all parties in making
realistic settlement decisions during the mediation. In
those situations where legal counsel will be participating
in the mediation sessions, submission of informal written
summaries and/or briefs summarizing the facts, claims asserted,
defenses, litigation history and settlement negotiations
is encouraged.
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What happens at the mediation?
Generally the mediation will begin with a joint session
attended by all participants. Each party should be prepared
to summarize his/her position during this session. You may
utilize whatever presentation method you believe most effective,
including charts, audio-visual, and oral presentations.
Bear in mind that the goal is not to prove a case but to
clarify your views for decision makers among the other parties
while educating the mediator.
The joint session may be supplemented by private confidential
caucuses, as appropriate, between the mediator and each
party. In caucus, you can discuss information which may
assist in working toward a resolution, but which you would
prefer not to disclose in direct negotiations. The mediator
will play devil's advocate to help all parties gain the
most balanced possible evaluation of the matters. Finally,
the caucuses provide an opportunity to assess realistic
options for resolution, without endangering any party's
negotiating posture.
Joint sessions combined with caucusing, as required, will
generally continue as acceptable options are developed for
the issues being considered. At completion of the mediation
a Memorandum of Agreement will be prepared documenting all
agreements made by the parties.
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What else can we do to
prepare?
Before coming to the mediation session, identify all of
the issues that you desire to resolve at the mediation.
Then, while trying to view the dispute from the other party's
perspective, attempt to identify possible solutions which
are acceptable to you and which you believe will be acceptable
to the other party. This will prepare you to participate
in the creative problem solving process.
Be prepared to "listen" to what the other party
has to say. Listen for the issues and facts as perceived
by the other party. Don't react to the emotional issues
going on between you, just deal with the issues. This will
help you understand what motivates the other party, thereby
providing insight into acceptable solutions.
Finally, determine how you will know when a proposed solution
to an issue is "fair" to you. This will give you
much needed confidence in making the critical decisions
which will be necessary during the course of the mediation.
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