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Frequently Asked Questions about Mediation
What is mediation?
Mediation is a process in which the various parties in a dispute meet with a trained, neutral person, the mediator, to arrive at a mutually acceptable resolution. Unlike resolutions by a judge, in which one party often wins while the other loses, mediation provides an opportunity for resolving a matter to the benefit of all parties. In litigation, the attorneys and the judge control the process, and the judge (or jury) controls the outcome; in mediation, the parties, themselves, control the process and the outcome. If mediation is successful, the parties voluntarily enter into a settlement agreement.
The mediator does not decide who is right or wrong or identify how a matter should be resolved. Rather, the mediator facilitates communication between the parties, helps identify and clarify the issues that need to be resolved, presents options to consider and guides the parties in exploring mutually beneficial solutions for the matter in dispute. Throughout the mediation process, the mediator makes sure that all parties have an opportunity to be heard and to contribute ideas for resolution.
Simple matters can be resolved in one mediation session. Complex and emotionally sensitive matters may take several sessions. Prior experience suggests that most parties that participate in mediation find the process beneficial, even if a dispute is not completely resolved.
How does the mediation process work?
Once a mediator is selected by the parties, or is assigned by the court (if mediation is required by a prior agreement), a date is scheduled for the mediation session.
A typical mediation session begins with the mediator and parties establishing rules for the mediation process. Once the rules are established and agreed upon, one party will present his/her side of the story in an uninterrupted manner while the other party listens. Each party will have an opportunity to explain his or her position and issues so that all of the information relevant to the dispute is heard. The mediator then works with the parties to determine exactly what issues are in dispute, what commonalities exist, and to encourage the parties to identify options for resolving the issues.
Creating settlement options is often the most interesting part of mediation, because the parties are provided the opportunity to propose options for resolving the dispute that result in “win-win” solution for both sides. This is in contrast to obtaining a decision by a judge or jury, who often can only rule for one side or the other.
Remember, a mediator is not a judge and will not make findings or rulings. The mediator will not determine the best solution for the parties. Rather, the mediator’s goal is to assist the parties in coming to a jointly agreeable resolution. Deciding how you wish to resolve the dispute remains entirely up to you and the other parties in the dispute. If you have retained a lawyer, he/she usually attends the mediation with you. Although lawyers may participate in the mediation, discussions between you and your lawyer are typically held in separate meetings with the mediator, in order to preserve confidentiality and privacy.
Even in the best mediation sessions, there are times when parties are not able to find a satisfactory resolution. If that occurs, the mediation ends and the parties return to the court system or arbitration, as if the mediation had not taken place. Since mediation is a confidential process, the inability to reach agreement in mediation will not negatively impact the court case.
Why should I mediate?
Parties are encouraged to mediate because of its demonstrated success in helping resolve disputes in a mutually satisfactory way. Frankly, when a judge decides the outcome of a case, the parties have little control over the outcome. Depending on the type of issue, one party wins while the other loses. In some cases, the decision may be a partial “win” and a partial “loss” but neither party controls what the wins and losses are. In mediation, the parties control the compromise. The parties have the opportunity to reach an acceptable solution and to control the compromises. A mediated solution can be quite different than the resolution imposed by the judge. Mediation provides parties with the greatest control over the resolution of their dispute.
Mediation can be scheduled relatively quickly and is usually much less expensive than taking a matter to trial or even arbitrating. Moreover, experience shows that parties who reach agreements in mediation are more likely to follow through with them than they are to abide by a court’s order. Perhaps, that is due to the fact that the parties are invested in the process and in the outcome. The parties own the process and the result.
For parties with an on-going relationship, mediation is an effective way to resolve the problems at hand, without completely destroying the relationship. If the parties must continue to deal with each other on some level even after a resolution of the issues at hand is reached, mediation is the best platform for reaching a resolution and continuing a decent working relationship. Mediation also provides an effective template to resolve potential future disputes if they arise, and successful mediation provides confidence that a mutually beneficial resolution can be reached in future disputes.
Finally, there is a level of privacy in mediation that does not exist when taking a matter to court. Since court proceedings and the resulting documents in court files are generally public, parties may choose mediation as a way to keep various aspects of their dispute private and out of the public eye.
How do I select a mediator?
Whether mediation is voluntary or are ordered by the court, the parties involved in the dispute have the right to select the mediator. When selecting a mediator consider the mediator's:
- Training and continuing education
- Fees and services included
- The type of mediation process used
How much does mediation cost?
Like other professionals, mediators charge for their services, and the parties to the dispute are responsible for paying the mediator. Mediation services are usually performed at an hourly rate. Usually the parties split the mediation costs equally. Other arrangements may be reached, in advance, between the parties.
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