Q. What is mediation?
A. A formal mediation is a voluntary confidential process in which a trained neutral professional helps two or more parties arrive at a resolution to a conflict.
Q. Are mediators judges?
A. The mediator does not judge who is right or is wrong, but works with the parties to help them arrive at a solution to their own problem. Mediators do not offer any legal or financial advice. They do not determine the outcome but assist the disputants in reaching their own resolution.
Q. What does the mediator do?
A. Assesses whatever the parties want to resolve and encourages communication. The mediator may assist each party in identifying the issues and helps them manage their emotions and avoid a refusal to compromise. A mediator encourages creativity and can assist parties drafting an agreement or recognizing true differences.
In the Beginning:
- Assess whether and how to intervene.
- Create an arena for communication.
- Invite parties to participate.
- Negotiate the purpose, structure and guidelines of mediation with the parties.
Throughout the Process:
- Help each party to feel heard.
- Identifies the key issues that parties need to address and the needs driving those issues.
- Frames the issues and concerns.
- Works to create an atmosphere of safety.
- Keeps the process focused.
- Manages emotions and communication.
- Deals with unproductive power dynamics.
- Encourages incremental and reciprocal risk taking.
- Facilitates an effective negotiation process.
- Deals with impasse.
During the Problem-Solving Phase:
- Encourages creativity in problem solving.
- Helps parties develop and discuss options with each other.
- Helps people think through their choices.
- Articulates and solidifies potential agreements.
- Discusses implementation.
- Drafts agreements that have been made.
Q. What are the benefits of mediation?
A. First, mediation provides parties to a dispute the opportunity to have control over the outcome, creating greater satisfaction and an increased likelihood that the final agreement will be carried out without further litigation.
Second, mediation provides a safe and structured process designed to encourage communication of respective positions in a competent, ordered and less emotional context.
Third, mediation can help preserve or even improve existing relationships that would otherwise be at risk if resolution is not reached.
Fourth, mediation can be a time and money saving opportunity to avoid the high cost of litigation of disputes.
Q. How does mediation work?
A. From The Dynamics of Conflict Resolution by Bernard Mayer, pages 192-193.
- “Often the mere presence of a neutral third party changes the course of a conflict, regardless of any specific intervention. Because people in dispute have to alter their approach to a conflict in order to accommodate the presence of someone who is not in conflict, they will change the way they present their issues to communicate them in a less emotional and loaded way.
- Mediators bring a different commitment and vision to the interaction. They enter the dispute having a firm belief that mediation can help the parties to reach a resolution. This optimistic energy of the mediator often changes the way the parties perceive their dispute.
- A good mediator brings an ability to reframe the conflict and to engage in problem solving and communication that can often result in a resolution design.
- A mediator is committed to helping the parties find the outcome that will address each of their concerns in a way consistent with their values and standards, and the process used can encourage the parties to seek an answer rather than focus on the problem.
Q. Are there any risks to mediation?
A. Since mediation is a voluntary effort and any party or the mediator can call a halt to it at any time, there is little or no risk to mediation. Neither party is required to accept any agreement that they don’t ultimately support.
Q. Can complex issues be mediated?
A. Often individuals within a group on one side of a conflict may have different positions from others within their own group. Complex issues as well as multiple parties benefit by the structure of a mediation and the use of a mediator to facilitate conversation between or among the differing positions and parties.
Q. Is mediation confidential?
A. Under the Uniform Mediation Act, in Ohio, mediation is a confidential process. Furthermore, mediations can be made confidential by written contract if confidentiality is not mandated by the particular state. Neither a participant nor a mediator can disclose any information or material growing out of the mediation without first seeking and receiving the express consent of the parties and the mediator in that mediation.
Q. How long does a mediation take?
A. The duration of a mediation will be impacted by the parties and their commitment to explore the possibility of a mutually agreeable solution. Business mediations can be completed in less than a half a day, and others can take much longer. Mediations can be reconvened if progress is being made.
Divorce mediation generally takes between four and 10 two-hour sessions depending on the issues to be addressed.
Q. What if I don’t trust the other side?
A. The mediation process will encourage the parties to share their message in a positive tone. When this occurs, trust is more apt to follow.
Q. I don’t want to change my mind. Can mediation help?
A. Usually, neither side to a dispute intends to “change their mind” and often they do not, yet many still resolve the dispute. Mediation offers the parties a chance to express their position and hear the other side’s position. No one will force you to change your mind or make decisions for you in a mediation. Instead you are given the opportunity to speak your mind, and at the same time you are required to hear the other side’s position as well. The parties are empowered to resolve their dispute.
Q. How do I select a mediator?
A. Selecting a mediator depends upon the issues to be mediated. Obviously, if you have a particularly difficult area of dispute, such as divorce or dissolution, or medical malpractice, you may want to find a mediator with skills in that particular area or at least knowledge of the area. Do not take the position that any mediator recommended by the other side is one to be avoided. Do your own research on all potential mediators and find one who meets the needs of the issue and who can be fair and impartial in the eyes of both sides.
Q. Will mediation cost more and delay my case?
A. Actually, mediation can reduce the cost of litigation even if it is unsuccessful. Remember that you are not required to have an attorney present, you can mediate even before a case is filed, no witnesses or witness fees are required, and no filing fees are normally required for mediation. Additionally, there is an opportunity to be heard without the expense of an attorney since an attorney’s presence is not required. Even if an ultimate resolution is not reached, the issues may become clearer to both sides and provide a focus for any litigation that might continue. Mediation does not delay your ultimate trial if one occurs. In court ordered mediation, the process may be early on in the case. Mediation is even scheduled after a verdict in appellate situations. Mediation does not require the filing of motions, it does not require the attendance of witnesses and can be limited in time to be reconvened if progress is being made.
Q. Do I need a lawyer or can I have a lawyer?
A. While an attorney is always welcome, an attorney for pre-filing mediation or even post-filing is not necessary. The disputants decide whether they want to have counsel present. One of the purposes of mediation is to allow the parties to be heard by each other. If you feel stronger or safer with counsel present, an attorney is always welcome.
Q. What if no agreement is reached?
A. If an agreement is not reached, your rights to litigate your issue remain. Conversations had and comments made during the mediation will remain confidential and not subject to testimony at any subsequent trial.
Q. Who decides the outcome of my mediation?
A. The parties in a mediation are encouraged to communicate directly to one another. By so doing, they often gain an understanding they might not have had otherwise. Additionally, because they are presenting their positions to the other side, they are empowered to both make demands and offers they might not previously have thought available to them. A decision as to how the case is going to be resolved is not imposed on them by a judge or a jury and they are their own experts deciding the best resolution under the circumstances that become known to them during the course of the mediation.
Q. What if we aren’t getting anywhere?
A. Since mediation is voluntary, if it is not progressing, one party or the mediator herself may decide to terminate the mediation. Very little expense in time, energy or money has been invested since mediations that do not reach an agreement generally terminate quickly with an unsolvable impasse.
Q. During litigation, what is the best time to mediate?
A. If there is a conflict between parties, there is never a time that is too late or too early to mediate. Often, parties include mediation requirements in their contracts of employment or business contracts so that if a conflict does arise, they go immediately to mediation. It is never too late or too early to mediate a dispute.
Q. What is the process of mediation?
A. Every mediation is subject to the process used by the particular mediator. Generally, there is an introductory stage at which the mediator presents the basic process details, and the ground rules for the mediation. This phase is followed by a problem identification phase where the mediator requests that each party explain their perspective on the dispute. After each party relates his or her point of view, the mediator may then summarize what has been said to ensure that he/she and the other parties accurately understand what the litigants have said. Then, the mediator will identify those issues that are available for mediation and submit them to the parties. The parties then will evaluate potential alternatives to resolution as well as potential ways to resolve the matter.
If there is an agreement, there is then an opportunity to review and execute a written settlement. Normally the parties will circulate a proposed settlement agreement and the mediator will monitor this stage to assure progress toward conclusion. Finally, after the parties have signed or executed a settlement agreement, it can be enforced as a contract between them or made an order of the court. In either case the parties are bound by their written contractual settlement agreement.
Q. Who must attend?
A. Normally, all the parties to the dispute must attend, and anyone with authority to settle on behalf of the parties in a business mediation, such as an insurance company representative or a person making decisions for the company or individual. It is usually not effective to simply have the attorneys show up for a mediation without their parties.
Q. How do I prepare for a mediation?
A. Think about what your goals are. Determine why you haven’t resolved the issue in the past, and determine what criteria you are going to use to evaluate any demands or offers that are presented at the mediation. Try to anticipate what the other side is likely to need in order to resolve the case. Consider the strengths and weaknesses of your position. Also determine what the cost of going forward with the issue in litigation and what the potential risk of that process would be.