WHAT IS MEDIATION?
One of the amazing things about mediation is that it is so many things. This section discusses some of the many things mediation is as it relates to the civil side of the law and some of the people who act as mediators.
Mediation is a part of family counseling for people getting divorced. Mediation is a way for families who are splitting into parts to learn to deal with the changes in roles, duties and opportunities and to face those changes with emotional balance.
To many, mediation is a special form of family counseling handled by licensed family counselors and therapists.
Mediation is a part of the civil court system where parties to law suits are aided in settlement negotiations aimed at helping them find their own best interest.
Mediation is a part of community action and conflict resolution, a place where volunteers, often with the Better Business Bureau or Community Alternative Dispute Resolution Centers, resolve conflicts and problems that otherwise would end up in small claims court.
To many, mediation is an alternative to the formal justice system, not a part of it, conducted by “real human beings” rather than lawyers (no offense).
So, having discussed “what is mediation” the second question is…
WHAT MAKES IT MEDIATION?
Successful mediation as an alternative method of dispute resolution, in all of these contexts, is mediation because it has the following five elements:
1. An impartial third party facilitator.
The third party neutral, the mediator, is the person who makes the entire process work. As long as there is a neutral facilitator, the parties can trust that they have some safety and are not being abused by an interested party. All of these programs work because the mediator in them is known to either be neutral or supportive of the parties and not an involved party.
Thus the first thing that makes a process one of mediation (and not something else) is a third party who facilitates – aids the parties in a neutral fashion to find the parties own best interests.
2. A third party who protects the integrity of the proceedings.
Usually this means that the facilitator or mediator protect the confidentiality of the proceedings. Thus, not only does the mediator not take sides against any party to the mediation, the mediator does not usurp the parties’ rights to disclose, or not disclose information. The mediator preserves the integrity of the proceedings in all ways.
Generally this means many things – such as there are no records kept by the mediator. When there is no record, it becomes much harder to breach confidentiality or to try to use the mediator to prove or force a particular point not finalized in the parties agreement. In fact, some ADR groups and centers require the parties to take all notes on provided paper and then take and destroy even the notes after each session.
Confidentiality also means that the facilitator is not subject to subpoena and thus cannot be made a witness. Without notes or the facilitator, the only method to breach confidentiality is the testimony of an interested party who is usually bound by law (and thus subject to being quashed) not to disclose more than is agreed.
3. Good faith from the participants.
Good faith includes not only entering into the ADR method with the intent to work towards a resolution, it also includes not using the process for outside purposes. Thus there are rules that provide for no service of process during ADR, and for similar bars to the abuse of the mediation process by attorneys and non-attorneys alike.
What makes all of the proceedings mediation is that the parties are in the process to seek solutions rather than for an ulterior purpose (e.g. to abuse the other party by use of the process). Both the behavior and integrity of the neutral are important in creating, and preserving good faith.
4. The presence of the parties
Those with full authority to act for the parties must attend so that the parties can work towards resolution. If the decision makers do not attend the process becomes something other than mediation.
All parties necessary to resolve the problems should interact with the mediator. In a family dispute, if a party always checks with his parents before acting, the parents should attend (and may need a referral to additional counseling). In a labor matter, if a company president always checks with the majority shareholder, the majority shareholder should attend.
It is the parties who are being resolved as much as it is the problem that is being settled.
5. An appropriate site or venue
Generally this means a neutral site that is conducive to the process. It must mean a place where neutrality, confidentiality and inclusiveness may be obtained. The place is some times as important as the persons and is a part of the process often overlooked.
For more on Family Law mediation standards>>>
When you reach agreement through mediation, you control your choices, not the judge or a lawyer; no one forces you to do something that you don’t really want to do. You remain in complete control; your divorce will be resolved to your satisfaction. And the fees for mediation are typically less than ten percent of those of an adversary case! It is a win/win situation.
If you are interested in finding out more about mediation, or if you want to set up an appointment, please call our friendly customer assistance representative at our Equal Access Helpline for a free consultation. We look forward to your call.
Family Law Mediation
In Family Mediation there are many illustrative cases where the appellate courts have highlighted the empowering feature of mediation for the parties.
For example: “When divorcing parents cede to the judicial branch of government the duty to decide the most intimate family issues, it is not unlikely that one or both parents will be less than satisfied with the decision. The bench and bar have for years now encouraged divorcing parents to resolve their differences through mediation. In effect, parents have been urged to make their own law, in the hope that they can better live with a decision that is their own, rather than a decision that is externally imposed. (Emphasis added.)
Keep your costs down by using a Family Mediator to resolve your differences.
Mediation is much faster than taking a divorce case to trial.
An agreement of the parties is much better than one imposed by a court.
Equal Access to the Law is a pioneer in the use of mediation and document preparation to reduce the high cost of divorce. Mediation is the art of using a fair and impartial third party to resolve differences. Mediation can be used by individuals who are not represented by attorneys. It can also be used by represented parties to assist in the resolution of issues. After a successful mediation a Settlement Agreement is prepared. Unrepresented parties who have a Marital Settlement Agreement in place, can now use a document service to prepare the necessary forms to complete the divorce.
Suggestions for a Successful Mediation:
Parties have found the mediation process most productive and useful by considering the following well in advance of a scheduled mediation:
1. Preparation is Vital. In most circumstances there is a direct correlation between level and quality of preparation and success in mediation. Success does not necessarily mean full and complete settlement, but it does mean at least a meaningful and productive exchange of information and a heightened awareness by parties and counsel of each other’s strengths and weaknesses. From the party’s standpoint, preparation means you should know all you can about your side, as well as the opposing point of view.
Remember, however, that mediation is non-adversarial and informal. Extensive preparation should not translate into hardened, adversarial positioning or negative behavior toward opposing parties or counsel. This behavior is counterproductive and does nothing but inhibit and slow down or halt the mediation process. As in most situations, knowledge is power. Mediation is no exception.
2. Let the Mediator Know in advance if there are any problems or concerns that will assist the mediator in assisting you at the mediation. This is not an improper or prohibited ex parte communication with the mediator, but is in essence a pre-mediation conference and can be confidential if you so desire.
3. Know Who Will Be Present At Mediation: Once the mediation begins it is too late to ask if someone who should be there, will be there. If lawyers are involved, a little communication with opposing counsel can go a long way toward making the process as productive and successful as possible. If lawyers are not involved, contact the mediator if you have any concerns or questions as to who will or will not be present at the mediation.
4. Understand the Role of the Mediator: The mediators job is to help the parties settle their differences by asking a lot of questions, listening to the answers, appropriately discussing strengths and weaknesses on both sides, and exploring and discussing the inherent risks and possible outcomes of proceeding to trial. The parties need to understand that the mediator does this with both sides, and that the mediator should be neutral and impartial throughout the process. If anyone in the mediation feels the mediator is not being neutral and impartial, or is somehow “taking sides” this should immediately be brought to the mediators attention. This concern should be addressed immediately if it arises.
5. Rember that the Responsibility for Resolving the Dispute Lies with the Parties: Not with counsel or the mediator. This is a rare opportunity, and certainly does not arise in the adversarial courtroom setting, and the parties should be prepared to take full advantage of being able to decide for themselves what happens with their dispute.
6. Know What to Expect of Your Mediator: Be familiar with the Standards of Professional Conduct. The Standards, relative to mediator conduct, presently provide, among other things, the following:
The mediator may not force or impose a settlement.
The mediator shall not unnecessarily prolong the process.
Decisions are to be made voluntarily by the parties themselves.
The mediator shall not coerce or unfairly influence a party into a settlement.
The mediator shall be impartial and advise all parties of any circumstances bearing on possible bias, prejudice or impartiality.
The mediator shall not render a personal or professional opinion as to how the court in which the case has been filed will resolve the dispute.
The mediator shall not require a participant’s further presence at a mediation when it is clear the participant wishes to withdraw.
The mediator shall suspend or terminate the mediation if the mediator believes the participants are unwilling or unable to participate meaningfully in the process, or that an agreement is unlikely.
The mediator shall cause the terms of any agreement reached to be memorialized appropriately and discuss with the participants the process for formalization and implementation of the agreement.
The mediator shall not knowingly assist the parties in reaching an agreement which for reasons of fraud, duress, overreaching, the absence of bargaining ability, or unconscionability, would be unenforceable.
This is not intended to be an exhaustive discussion or enumeration of the Standards of Conduct , but simply to highlight the Standards as they relate to mediator conduct and the ethical responsibilities of the mediator.
Sample Mediation Agreement
AGREEMENT TO MEDIATE
This memorandum indicates our agreement for both of you to enter mediation with Equal Access, hoping to use the mediation process to agree on the issues surrounding your separation and divorce. Therefore, we agree as follows:
1. Equal Access will act as a neutral facilitator to help both of you reach your own settlement. Equal Access will not make decisions about “right” or “wrong” or tell either of you what you should do.
2. Equal Access will not offer legal advice or provide legal counsel. Equal Access has recommended that both of you consult separate attorneys during mediation to understand better your respective legal interests, rights, and obligations.
3. Mediation is not psychotherapy or counseling, and it does not replace such services.
4. Both of you agree that the success of mediation depends on complete and honest disclosure of relevant information and documents to each other and to Equal Access. This includes providing to each other and to me all information and documents that usually would be available through the discovery process in a legal proceeding. If either of you fails to make such full disclosure, a court might rule later that the agreement resulting from mediation is not binding.
5. All parties intend to continue with mediation until we reach a full settlement of the issues surrounding your divorce, but all parties agree that any party can withdraw from mediation at any time, without cause.
6. All parties agree to observe the following guidelines during mediation:
Leave fault and blame aside. The focus of mediation is on the future, not the past. Accusations only hinder the process and are not relevant to the issues to be discussed in mediation.
Accept responsibility for yourself. State what you want and need. Include your intent, reasons, and feelings. Don’t try to speak for your spouse. This helps facilitate the process.
Communications with Equal Access about issues under negotiation must be in the presence of both spouses. Please call Equal Access only for clarification of your next appointment time or of information needed for the next appointment, not for discussion of substantive issues.
There may be times when Equal Access will call for a “caucus.” In a caucus, Equal Access will meet with each of you separately to clarify issues. The caucus is the only time during the mediation process that information can be confidential. If you share information with Equal Access in caucus, Equal Access won’t report it to the other spouse without your permission. Even in caucus, however, information that is substantive to the divorce must be shared with the other spouse if the mediation is to continue.
Equal Access encourages you to view everything in your agreement as “written in sand” until you have resolved all the issues between the two of you. Divorce is complicated. There are many issues on which you and your spouse must agree. It will be easier for both of you to negotiate with confidence if you know you haven’t agreed to be bound to anything until you agree to everything.
Please feel free to dress comfortably. Mediation is hard work.
7. During the mediation process, Equal Access will prepare successive drafts of various computer spreadsheets and a Draft Settlement Agreement and, in most cases whenever changes have been made, distribute copies to both parties at the end of each mediation session. At the conclusion of the mediation process, Equal Access will provide a copy of the Draft Settlement Agreement to both of you and to your attorneys, if any. Each party will review the Draft Settlement Agreement with his or her attorney, if any, before the agreement is placed in final form and signed.
8. You agree to pay Equal Access $95.00 per hour for time in sessions with both parties. (Minimum 2 hours for the first visit.) and $125.00 per hour thereafter. All fees will be paid for equally by the parties, unless other arrangements are made. Equal Access will charge for time outside sessions for time spent talking to either of you or to your attorneys, if any. Equal Access will only charge for work time outside sessions if all parties (Equal Access and both spouses) specifically agree to it in advance. You will pay money as necessary to bring your account to a zero balance by the end of each session. If either spouse fails to appear for a scheduled mediation session, and neither of the spouses has called to cancel the session more than 24 hours in advance, both spouses agree to pay the full cost of the session.
9. The success of mediation depends, among other things, on honest and open communication. Accordingly, all parites (Equal Access and both spouses) will treat all written and oral communications made in the course of mediation as privileged settlement discussions. To ensure confidentiality, we agree as follows:
Equal Access will not reveal anything discussed in mediation without the permission of both parties, except that Equal Access may in our sole discretion report to the appropriate authorities any indication that either spouse or any other person is in danger.
Neither spouse will at any time, before, during, or after mediation, call Equal Access or anyone associated with Equal Access as a witness or subpoena or demand the production of any records with respect to the mediation. To the extent that either spouse has any such rights, each of you hereby waives them.
If at any time either of you calls Equal Access or anyone associated with Equal Access as a witness or subpoenas records of the mediation, Equal Access will resist disclosure. We agree that the party attempting to force such disclosure will reimburse Equal Access for any costs of resisting disclosure, including attorneys’ fees, and including payment for my time at the rate of $200.00 per hour.
Both parties agree that each of us has read and understood this Agreement to Mediate and that we agree to be bound by it.
Wife’s Signature: ____________________________
Rick FRENCH, Equal Access Mediator