Mediation - Frequently Asked Questions
What is mediation?
Mediation is a confidential process for resolving conflict between parties who have some interests in common and some interests that are adverse. (War is conflict resolution when there are no common interests.) Nearly all parties in dispute have some common interests, whether in preserving their relationship, avoiding the high costs of litigation, keeping a private dispute private, or the fierce love for their children, to name only a few. The mediation process helps the parties in conflict to identify and build on common interests for the purpose of reaching a mutually acceptable solution to their problem. Mediation requires the express intention of the parties to try to reach a resolution.
What is the role of the mediator?
The mediator, who is absolutely neutral in the dispute, guides the process, assists the parties in analyzing and removing barriers to resolution, and helps the parties stay the course to create solutions. A variety of mediation styles and strategies have developed. Here is my approach. First, I believe listening is the mediator's most important activity. While mediating I interpret language, tone, body movement, and silence so I can discover important issues and attitudes that may create barriers or windows to agreement. I communicate honestly and empathetically with the parties, whether together or in private caucuses during the mediation, so I earn and maintain their trust. I clarify positions but do not manipulate the parties. I support their autonomy and prod them to think consequentially and creatively.
Should the parties' imaginations flag, I may suggest possibilities that similarly situated folks have found helpful. I normalize feelings. I acknowledge their progress. I may rigorously challenge them when they cling to an unreasonable position. I offer reality checks, invited or not, if they move parties toward resolution. I demonstrate patience and pay attention to detail. I remind them that most problems have a variety of solutions, and a solution they design may be more enduring and satisfying than a court ordered one. More pointedly, if the parties do not reach agreement in a litigated matter, they hand over control of the outcome to a judge or jury. Still, a mediator's role includes recognizing when the mediation will produce no agreement and halting the mediation.
How long does mediation take?
Every dispute is unique. Each party to a dispute is unique. Consequently, unlike an athletic event, there is no set time or number of quarters or innings allotted to the mediation. It takes as long as it takes. Nevertheless, most mediations involving simple civil disputes or family law are successfully concluded within a few hours or a day. Complexity and number of issues, especially when accompanied by great depth of emotion, may increase the number of hours or number of mediated sessions needed to find resolution.
How much will it cost?
My fee is $175.00 per hour, with a two hour minimum. I do not charge for travel time but do charge for actual travel expenses. Typically the fee is divided between the parties and payable at the time of the mediation.
What if no agreement is reached?
The statements made by parties during the mediation are confidential and typically may not be used in later court proceedings. Moreover, mediation often brings to light new information or provides the parties with a fuller understanding of each other's perspective and interests. Sometimes the parties determine that information from other sources is needed in order to fairly resolve the conflict. Frequently the mediation experience provides the foundation for further information gathering and reflection that results in a later, successful mediation or in a directly negotiated settlement. When I am satisfied that no agreement can be reached during the mediation, I will stop the mediation. A party may terminate the mediation at any time, subject to any mandate imposed that requires a good faith mediation effort.
Do participants in mediation need a lawyer?
No. Some disputes involve neither court action nor lawyers and occur to resolve informally a conflict, for example, among co-workers or between neighbors. Other matters, such as the dissolution of a marriage, will require court action; however, mediation prior to filing a divorce complaint allows the spouses to settle all the issues in a way that minimizes legal and emotional costs. When the parties are capable of speaking up for themselves and value a fair resolution more than aggravating the other party or extracting every penny or ounce of flesh, a lawyer's participation may be limited to consultation or to drafting the necessary legal documents to conform to the mediated agreement of the parties. Often mediation occurs during the course of litigation, when parties are represented by lawyers, who either decide that the case is ripe for mediation or who are ordered by a judge to have the case mediated. Occasionally one party has a lawyer and the other does not. In no circumstance do I assume an attorney role in a mediation. I do not give legal, tax, or financial advice. I do not express an opinion about the settlement reached by the parties. I advise unrepresented parties to have an attorney review the agreement before it becomes final.
What kinds of disputes do you mediate?
My mediation practice tracks in large measure my interests and experience as a lawyer and focuses on personal injury, wrongful death, domestic relations, special education, employment law, medical and attorney malpractice, general civil matters, ecclesiastical / congregational disputes, warrant applications, and juvenile law.