How Mediation Works

 What is the difference between mediation and arbitration?

In mediation, the parties reach their own agreement with the help of the mediator.  The final decisions are made by the parties themselves, not the mediator.  In arbitration both parties present arguments to an independent person, the arbitrator, who then makes the unilateral decision of what should be done and issues a ruling which is then binding on the parties.  Although the proceedings may be less formal than a court hearing, the parties have basically hired their own private judge to decide for them how the matter should be resolved.

Lawyers may play several different roles in mediation, depending on the choice of the parties.  Sometimes, both parties hire lawyers who accompany them to the mediation and act as their representative.  This is typically the case where the parties have already commenced litigation before the mediation occurs.  Some people wish to attempt to avoid the expense and the animosity often associated with litigation by at least attempting to resolve their disagreement through mediation before initiating litigation.  They are often willing to meet with the mediator without lawyers present, but with the understanding that they may have the terms of their mediated agreement reviewed by their own attorney or any other advisor before it becomes binding and may change or avoid the agreement based on that advice.  Lawyers may also be hired to give legal advice during the mediation process, but not actually attend the mediation sessions.

No.  Even if the mediator is a licensed attorney, he or she is prohibited from giving any party legal advice.  The mediator may outline broad legal principles that are applicable to both parties for informational parties without giving the parties any advice on how to apply those principles.

If a complete agreement cannot be reached through mediation, then the parties retain the right to institute litigation or continue litigation already in progress just as if the mediation had never happened without any prejudice to their legal rights.  Mediation is a confidential process (with a few exceptions), so what anyone says during mediation sessions or tells the mediator in confidence cannot be used as evidence in court.  Documents produced during mediation are also confidential, although they are not exempt from discovery through legal discovery requests during litigation.  Sometimes the parties can reach an agreement on some of the issues during mediation and then reserve other issues for the court.  This reduces the scope of the litigation and reduces legal expense.

Once signed, a mediation agreement may be enforced in the same manner as any other contract.  If the parties wish to have the agreement made enforceable by the court without instituting new litigation, they can initiate a legal action in the court, submit the mediated agreement for the court’s approval and agree to be bound by it.  This is generally called an uncontested action.  For instance only the court can issue a final decree of divorce dissolving a marriage.  If the parties have reached agreement on all of the issues surrounding a marriage breakup, such as division of financial assets and liabilities and parenting and support of their children, then they can submit their mediated agreement to the court in an uncontested divorce case and ask the court to approve it.  If the court approves, it issues a final decree dissolving the marriage an ordering the parties to abide by the terms of the agreement.  The agreement is then subject to legal rules concerning modification and may be enforced just as if the terms had been ordered after a full trial.

Typically the mediator meets with the parties and asks each one of them to make brief uninterrupted opening comments stating their view of the controversy, the issues they would like to see resolved, and any general ideas they have for handling them.  Following those remarks there is general discussion of the case and the mediator usually has some questions to make sure that he or she understands the issues correctly.  At some point in the discussion the mediator will want to meet with each party separately in a session known as a caucus.  What is said in the caucus is also confidential, and the mediator will not reveal any information obtained in caucus to the other party without specific permission.  At the end of the caucus, the mediator will conduct a conversation about what should be discussed with the other party (for instance a settlement offer) and what should not (for instance the strong desire of the caucusing party to settle quickly.)  Sometimes more than one caucus with each party is necessary.  At the conclusion of the caucuses the parities will hopefully have the framework of an agreement in mind.  If so, then the mediator will prepare a written draft for each party to review.  If there are changes a party wishes to make, he or she can talk with the mediator and the other party to work them out before a final draft is prepared.  At that point, according to the terms of the agreement, each party will have a certain agreed period of time to consider the agreement and have it reviewed by their own attorney or other advisor before it becomes final.

That depends on the complexity of the issues and how long it takes for the parties to agree.  The mediator is skilled at moving the matter along at a reasonable pace that is comfortable for the parties so that they do not feel intimidated, but addresses all of the issues thoroughly and explores all of the viable options to resolve each of them.  Often more than one mediation session is held because the parties need to gather specific information or just have time to consider proposals before proceeding.  Mediation virtually always take much less time than litigation, which can drag on for months or even years.

The cost depends on the complexity of the issues and the ability of the parties to reach agreement.  Since the time it will take to reach an agreement is uncertain and is largely beyond the control of the mediator, most mediators charge an hourly rate.  Time spent away from the mediation sessions, such as the mediator’s time spent drafting an agreement and conferring with the parties by telephone or email, is charged at the same rate.  Generally, the mediator will present a current invoice at the end of each mediation session and payment is expected at that time.  Sometimes the mediator might send the parties a monthly statement.  Although it is not cheap, mediation is nearly always much, much less expensive than litigation.  Obviously, paying one mediator to help resolve the issues and then an attorney to review what you think is best and make suggestions is much less expensive than paying two attorneys to do all of the negotiating.  If expert advice is desirable, such as a retirement plan evaluator, the parties can agree on one credible neutral person to do the work rather than each hiring their own and having them argue their positions in a partisan manner.  Usually a much quicker result is reached, which saves not only money but emotional energy and stress.  If complete agreement on all issues cannot be reached through mediations, sometimes a partial agreement on come of the issues can be reached.  This limits the issues that must be litigated and thus saves money.  Even when no agreement is reached parties usually find that they have a much better understanding of the issues and the other party’s position and that participation in the mediation process has been very beneficial to them.

If a comprehensive mediation is reached, then it is filed with the court along with some other forms generally called “pleading forms.”  They state the legal basis of the case, state that the parties have agreed to a settlement of the issues on the terms contained in the mediated agreement, and ask the court to issue an order called a final decree dissolving the marriage and requiring the parties to abide by the terms of the agreement.  At least 31 days must elapse between the initial filing of the papers with the court and the issuance of a final decree.  Since the mediator is a neutral party, he or she may not represent either party in the divorce proceedings, even if the mediator is a licensed attorney.  The parties may hire an attorney to represent them as the plaintiff in an uncontested case with the agreement of the other party or the parties may file the papers representing themselves as pro separties without counsel.  The necessary pleading forms may be obtained from some court websites or from other legal publications or online sources.  The mediator may provide a set of forms for the parties to review and use based on their own judgment, but cannot participate in filing the forms or give any advice concerning their use.  If all of the proper forms are filed and the agreement is reasonable, then a final decree can generally be issued without the parties being required to physically appear at a court hearing.  Procedures for getting to this point may vary from county to county.

The most important thing is to think through the dispute and try to identify the specific issues where there is disagreement.  Then try to prioritize the issues by their importance to you.  Finally, try to think of options to resolve each issue in a way that might be acceptable to you and the other party.  Come to the mediation with an open mind, willing to listen to issues and proposed solutions brought by the other party.  The mediation sessions are not like a court hearing.  There are no rules of evidence and you can expect the mediator to take you at your word unless the other party raises a question concerning a particular fact.  Usually, it is acceptable to talk in terms of reasonable estimates or close approximations and having figures calculated to the penny is not necessary.  Specific information can be provided later if needed.  In divorce or separation cases it is usually helpful to bring evidence of current income such as a recent pay stub or W2 form and to bring an estimated budget showing what you think your ongoing monthly living expenses will be after the separation.  Even if you can’t quantify all of the expenses prior to the first mediation, it is helpful to have your best estimate.  The budget you share with the mediator will not be shown to the other party without your agreement.  For a list of questions that you might want to consider in a divorce case see the “Preparing for Mediation” article on the Resources section of this Website.

We are all spiritual beings in the sense that thoughts, personality, emotions and other non-physical qualities define who we are.  We are governed by what we believe about such issues as where we came from, our purpose in life, and what happens after we die.  A good mediator realizes that all of these “spiritual” factors play a role in how people engage with conflict, what solutions they believe are fair, and how they react to solutions proposed by others.  Often these spiritual issues are not openly discussed in the mediation, but a good mediator, while not a psychologist or a counselor, should understand that they are part of the decision-making process and be willing to discuss them with the parties (usually in caucus) if they desire.  Most people believe that there is a God, although vary in their understanding of a divine being.  Many people who identify themselves as Christians believe that the Holy Bible is a book handed down by God for our instruction and direction in determining truth and understanding the principles of how to live successful and meaningful lives.  Even among those who don’t believe that and those who don’t believe in any god, there is widespread belief that the Bible provides good wisdom and guidance for many aspects of life.  The principles of conflict resolution that are taught to mediators in a secular setting are consistent with the principles that are to be found in the Bible.  Therefore, I have decided to use them as appropriate to help in the resolution of the cases I mediate.  This almost always takes the form of simply asking a question during the mediation, usually in caucus.  I never use the Bible to condemn anyone or to say that a particular course of action is mandated.  It is always up to the individual parties to decide how to apply the principles, or whether to apply them at all.  On this Website I intend to present some short articles or blog posts concerning specific principles and how they might be applied.  They are for the use of whoever finds them helpful, and you are certainly free to ignore them completely if you feel that is best for you.