FAQs
CLIENT’S GUIDE TO MEDIATION
WHAT IS MEDIATION?
Mediation is an informal process wherein a mediator helps disputing parties reach an agreement. The mediation process identifies important issues, clarifies misunderstandings, explores solutions, and negotiates settlement.
WHAT IS THE MEDIATOR’S ROLE?
The mediator is not a judge and does not make a decision or impose a solution to the dispute. Rather, the mediator helps those involved in the dispute talk to and hear each other, thereby allowing them to resolve the dispute themselves. The mediator manages the mediation session and remains impartial.
WHO PAYS FOR THE MEDIATION?
The cost of mediation is shared equally by the persons involved unless they agree otherwise. You should know in advance what the mediator charges and when payment is expected.
HOW DOES MEDIATION WORK?
At the mediation session, each person involved in the dispute presents a summary of his or her point of view. If you have an attorney, he or she may go with you to the mediation session if you want. The mediator will meet with everyone together and may also meet individually with each side at the same location. This offers participants the opportunity to communicate to the mediator their real interests in the dispute as well as to vent anger or frustrations outside the presence of the opposing side, preventing any inefficient or distracting arguments. The mediator will work with each person until an agreement is reached that is acceptable to everyone. The agreement is put in writing and signed by the people involved, with the advice of their attorneys. This agreement is then filed by your attorney with the courts and once signed by a judge, carries the same weight as a court order.
HOW LONG DOES MEDIATION TAKE?
The time required for mediation varies. It depends on the complexity of the issues and the concerns of the people involved. It may be necessary to meet with the mediator more than once.
LAWYERS GUIDE TO MEDIATION
The role of the attorney in mediation differs greatly from that of the attorney in litigation. In a mediation session, the attorney plays the role of counselor for his or her client. Instead of presenting an argument, the attorney is asked to allow the client to speak for him/herself and to be present to support and advise the client through the process. The mediation process is geared towards reaching a workable agreement for both parties.
The attorney should encourage his/her client to enter the mediation with the idea of working with rather than against the opposing side.
The attorney is encouraged to help the clients review the mediated agreement before signing the contract. The mediator assists the parties in drafting the mediated agreement. Additionally, the attorney should review any and all agreements before allowing the clients to sign such documents.
Attorneys are encouraged to attend mediations unless requested by the client to withdraw. If an attorney is unable to attend a session, they should arrange a method of communication with the client, as their advice may be needed during the sessions.
Rule 31 mediation is sometimes made mandatory by the courts. A good attorney will assist their client in mediation by treating the process not as a burden, but as a fair, positive form of dispute resolution.
The attorney should inform the mediator of any special needs their client may require at the beginning of the first session.
The mediator functions as a neutral facilitator and will not make decisions, give legal advice, or lead either party in any one direction. The mediator helps the clients communicate with each other so that they may hear each other's concerns.
The mediator aids the clients in identifying common issues and developing possible solutions to these issues. The mediator then helps the clients work through the solutions to find those which are workable for both parties.
Each mediator has individual rules for taking breaks, holding separate sessions with clients, etc. The mediator will explain exactly how they conduct mediation sessions.
Mediation is private and confidential. What is said in mediation stays in mediation. Any offers of settlements or negotiation will be inadmissible to prove liability in court.