Frequently Asked Questions About Mediation
Litigation is too costly, too lengthy, too destructive, too stressful and too inefficient. Mediation creates the spirit of cooperation. Mediations are confidential while trials are often open to public scrutiny. People like to mediate because you have more control over the outcome of a dispute than in traditional litigation.
Mediation also provides for the quicker exchange of proposals and offers. If you wait to negotiate amongst attorneys, you may go weeks without hearing back on an offer. Mediations typically take four to six hours at the most, some much shorter and during that type, many ideas, offers and proposals are quickly exchanged.
There is no risk in mediation. It’s not binding. No solutions are forced on you. If you reach a true impasse, you can still litigate those unresolved disputes.
When should I mediate?
You do not have to wait for a filing or court order to mediate. Oftentimes, the earlier you mediate, the more likely you are to arrive at a resolution. The more time that passes between an issue arising and engaging in mediation, the more likely the problem has expanded during that time. The parties spend funds on attorneys, become entrenched in their positions, and lose trust and respect. The problem compounds with the passage of time, so mediation should ideally be attempted sooner than later.
What does the mediator do?
The mediator helps the parties evaluate the case to identify the key issues and potential solutions. Mediators are not judgmental, but it is helpful for the neutral third-party mediator to advise the parties regarding their professional evaluation of the case while analyzing what the parties want.
How is mediation conducted?
Different mediators have different methods. Some are more heavy-handed in steering the conversation or pushing particular solutions. Some have a more hands-off or freestyle philosophy.
My approach: I do not give an opinion on my evaluation of a case until I am asked for my opinion. I try to not give my opinion until way late in the mediation. While I don’t want to prevent the parties from expressing their true desires, I do welcome being able to express my opinion of where the parties should go with the case/issue in hopes that my opinion can aid the parties’ resolution of the case.
I wait until late in the mediation because I need to listen for clues as to what each of the parties truly want and need to resolve the case. So I am careful not to circumvent a resolution by inserting a judgment that either party simply cannot live with. When I do provide the parties with my opinion, I try to do so by expressing a range of what I believe the outcome of the case would be if they proceeded to trial. No one can concretely predict what a judge or jury will do prior to the presentation of evidence, in large part because evidence often does not come out the way it is expected to be presented. As a result, only a range of what the result could be is truly reliable.
In sum, I try to be very reserved and cautious in rendering opinions UNLESS the Parties seem to really want and need me to be more evaluative of the merits of their positions. Why?
- I realize that it is unlikely that I can get all the facts I would need to truly give a concrete evaluation of a case within the short period of time that we have for mediation.
- I don’t want to silence anyone when the point is to get a meeting of the minds which requires both parties’ input.
- That is what you are paying your lawyer for in large part. The parties need to go into the case knowing what the likely outcome would be at trial as their own attorneys have advised them. The attorneys likely know much more about the case than I will as they will have reviewed discovery, spoken at length with their clients, etc.
Do not expect me to gang up on one party, I won’t do it. No agreement reached via strong-arming at mediation will make it into a court order.
One effective way to resolve cases is to help the parties create their own solution rather than to tell the parties what the solution should be. The parties must be asked a lot of questions before anyone can reach a conclusion. This is sometimes known as the Socratic method — providing the right questions without providing the answers.
What is the format? Do we sit across from each other?
Mediations can be held in different formats:
Joint session — This is the traditional method of mediation: two parties sitting down with a third-party neutral mediator to discuss the issues and hash out an agreement. Depending on the nature of the disputes and the individuals involved, these direct talks can be highly productive or quickly escalate.
Caucus mediation — The parties start with a joint session but at any time either party can request to go into a caucus room for a private discussion with the mediator. This enables the parties to work through issues that might be too sensitive for face-to-face. More and more often, civil mediators do not allow joint sessions and skip right to caucus rooms. If any party doesn’t want to be in the same room with the other party, I am not going to make them mediate together.
Shuttle mediation — Both parties come to one neutral site, but in separate conference rooms. The mediator acts as a go-between, meeting with one party to hear what they have to say, then relaying the proposal or feedback to the other party. This “shuttle diplomacy” continues until the parties reach common ground. Although there is no direct interaction between the parties, it is still more productive and efficient than litigation or submitting formal proposals and counterproposals through the attorneys.
Moderated settlement conference — This format is usually done at the prompting of counsel who want me to render an advisory non-binding opinion for use by the parties in settlement negotiations. I can do this upon written briefs, review of trial exhibits, and proffer by the parties and/or the parties’ attorneys. I can also call potential witnesses. In this format I consider formal rules of evidence and consider what evidence tendered by the parties I think will be able to be considered by the tribunal in any subsequent court proceedings. I also note why I did or did not consider certain evidence in rendering my decision. This is a tool that can help parties get an early neutral evaluation of their positions in hopes that it aids resolution.
Before you engage, I can help you decide what mediation format is most appropriate for your situation.
Does mediation really work for divorce and family law?
One area of mediation in which I am exceedingly passionate is family law matters, especially issues involving parental responsibilities (parenting time and decision-making). Mediation with me in these matters can result in a fully prepared parenting plan that is signed in the mediation and ready to be filed with the court. I literally type up the agreements as we progress in the mediation so that the parties can walk out of mediation ready to have the agreement entered by the court and so they can move on with co-parenting. I use visual aids (large calendars) to help the parties see and understand the parenting time schedules better.
The biggest reason to mediate issues that involve kids is to reach a resolution early to keep your kids out of the stress of the litigation. If you are going through a divorce or already divorced, your kids have been through enough. Do not make them testify or expose them to the unnecessary stress of litigation. Even the appointment of a guardian ad litem can cause undue stress for kids as the guardian ad litem is required to interview the kids. Kids inevitably become keenly aware that their parents are feuding, and that they are in the middle of it. I cannot imagine a worse fear a child may have.
Another reason to mediate is to have a respectful format that allows the parties to vent. I encourage the parties to vent, but ask that is done in a business-like manner.
I will try my best to allow the parties to keep talking and I truly believe that time can work for you. We can always get a new date and talk in a different format. I don’t mean I will keep the parities until 1 a.m. because that is too much pushing and I want the parties to go home and think about what was discussed. On the other hand, I don’t believe that putting in one hour and giving up is a fair attempt to settle. It can get uncomfortable, but in the long run you will be much happier for sticking with it.
How do I prepare for mediation?
Unlike litigation, you are not preparing to “win” your mediation. You don’t need to bring facts and documents as much as you need to bring the right frame of mind.
- Know what you want and be prepared to articulate what you want and why you want it. Why? I can’t resolve your case if you don’t know what you want.
- If you have an attorney, ask them what the outcome will be if you go to trial and listen to your lawyer. If you don’t know what the best alternative to a negotiated agreement is (what a judge or jury would do with the case) then you really have no frame of reference to draw upon to help you decide what to do in mediation. If you come to mediation without knowing your options, you are likely wasting your money and time because you can’t make an informed decision.
- Be ready to be kind, confident, respectful, and ready to express your feelings. You must put yourself in the right mindset to be able to effectively mediate. If a party is disrespectful to another party during mediation, I will promptly end the mediation.
- Prepare an opening remark. When I conduct a mediation, I give each party five minutes at the beginning of the process. What do you want to get off your chest that if you don’t say it before you leave, you will be remiss or have regrets. We flip a coin to decide who goes first.
- Think about all the benefits of resolving a case via mediation prior to mediation. Ask your attorney the following: (1) The costs of litigating your dispute and (2) the benefits of avoiding litigation.
- Think about the strengths and weaknesses of your case and don’t do so wearing rose-colored lenses. Ask your attorney to tell you what the other side is going to argue.