Mediation: The Right Fit for the Right Situation
Updated: Aug 15, 2018
Mediation is a form of alternative dispute resolution (ADR), or in other words, it is a way of resolving disputes between two or more parties with the culmination of a final agreement without having to have someone else (e.g., an arbitrator, a court) resolve the dispute for the parties. Mediation is different from arbitration. With arbitration, an arbitrator(s) decides the issues and the arbitrator(s) decision is binding on the parties. When parties are unwilling or unable to resolve a dispute on their own, mediation is one good option.
Mediation is generally a short term, voluntary, structured process. Unlike the litigation process in a court of law where a neutral third party (usually a judge) decides, in mediation the parties and their mediator usually control the mediation process, deciding who will be present, where and when mediation will take place, how the mediation will be paid for, etc.
Mediation involves a neutral third party mediator who facilitates the discussions to assist the parties to: 1) define the issues; 2) define the interest(s) and find the common interest(s); 3) brainstorm solutions and different options (their legal options if the mediator is an attorney and the parties agree to have the mediator provide legal advice); and 4) come to a final agreement. A skilled mediator will use techniques to constructively guide the discussions and the process. They will also document in writing what the parties have agreed to, even if it is a partial agreement.
There is no such thing as a “Certified Mediator” because there is no such thing as a certification program. If your mediator is an attorney, they can only provide legal advice if the parties agree that they want this attorney to provide legal advice. A non-attorney mediator should never provide legal advice. In fact, it is illegal for anyone to provide legal advice if they are not licensed to do so where they are doing it. Therefore, good mediators will recommend and advise all sides in a mediation to have their own attorney review the final agreement before it is signed and executed by all of the parties.
In my experience, mediation works well when all parties are ready, willing and able to come to the table for complete discussions. And if all information is readily exchanged between the parties. Generally mediation works best when there are no addiction or substance abuse issues; there has been no history of any type of abuse; all parties have the mental capacity to be able to understand their options and make decisions; and if the individuals who have to authority to make the final decisions are present or readily accessible during mediation.
At each mediation session (there may be one long session or many shorter sessions depending on the circumstances and the party’s preferences), there should be some progress made towards reaching a final agreement. There cannot be repetitive responses from a party of something along the lines of “I’ll think about it” or “I don’t know,” time and time again at each mediation session. When you see this, this is a red flag that mediation might not be the right way to come to a successful resolution and that the mediation sessions may in actuality be a waste of time and money because no progress is being made. Often times when this happens in divorce cases, the parties end up taking their divorce case to court and ask the court to help them come to a resolution.
In regards to mediator's fees, usually the mediator charges an hourly fee that is equally split between both of the parties. It is not unusual for mediators to charge an hourly rate for minimum amount of hours upfront, before the mediation process actually starts. The premise behind this approach is to give mediation sessions a fair attempt because, by design, all parties have become vested in a minimum amount of time to mediate and have incurred some expense. No matter the mediator's approach, It is going to take some time as well as a commitment and an investment from all parties for mediation to work.
Sometimes each party in mediation is also represented by an attorney. Remember, a mediator is a neutral third party, unlike an attorney who is, by job description, an advocate. Remember too that an attorney is hired to advocate for one party, not both parties. An attorney’s fee is in addition to a mediator’s fee and usually each party pays for their own attorney’s fees.
Often people ask me if it would be cheaper to mediate or to litigate. My response is the expenses are really dependent on how long and drawn out either option may be. If attorneys and mediators are involved, mediation may not always be the cheapest option. So my advice is to mediate only if you think that both parties can truly have a complete discussion of all the issues and it is reasonable to believe that the parties can come to a fair and equitable agreement.
If you are considering your divorce options, another option to consider is a "collaborative divorce." That is explained further in another one of my blogs.
Each situation and dynamic between parties is unique. I’m happy to talk with a prospective client to help them determine whether mediation or court maybe their best option going forward. I can be reached at 860-295-1600 or through the contact form on this website.
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