What are the chances for success?

The chance that there will be a meaningful resolution of all issues discussed in mediation is excellent. Those who participate in mediation are motivated to work cooperatively to reach meaningful resolutions.

How long will mediation take, and how much will it cost?

It is very difficult to predict how long mediation will take or, for that matter, how much the overall process will cost. A lot depends on how discussions proceed, and on the complexity of the matter. As you might expect, every situation is unique and special. For divorce and family matters, for example, I have found it takes from two to six sessions, at two hours a session, to adequately cover all the issues raised, and reach agreements that are acceptable to each party.

Who pays for mediation?

Mediation participants typically decide responsibility for mediation fees. Sometimes a prior agreement or court order sets out how payment is to be made. Parties are encouraged to consider sharing the fees in some fashion so all will benefit from an expeditious and economic resolution.

What about individual attorneys?

I am ethically bound to advise anyone participating in mediation to have any mediated agreement reviewed by individual legal counsel prior to their signing off on the agreement. I’ve found it works best for mediating parties to obtain individual legal advice throughout the mediation process. This legal advice may be best obtained early in the mediation. It can take the form of periodic consults, legal review of preliminary agreements, review of the final agreement, or full representation. Obtaining legal guidance will both ensure that all parties are making informed decisions, and greatly elevate everyone’s comfort and confidence in the final agreement.

But the reason we’re in mediation is to avoid paying attorneys!

Many people have a great fear of consulting with an attorney because of their perception of what “getting involved” with a lawyer means. They are concerned it will cost a lot of money. Further, they are afraid they will surrender control of their case to the lawyer and no longer be centrally involved in the decision making.

You are in charge of how you use attorney services. You may only need a consultation now and then. Maybe you just need someone to review your mediated agreement to make sure you haven’t missed anything. Or perhaps you need the lawyer to help with drafting the legal documents.

There are many attorneys who provide what is called Limited Legal Services Representation – who provide services geared to the client’s particular needs. These attorneys can help you make informed decisions, while  at the same time respecting and supporting your efforts to achieve a resolution in a non-adversarial manner. In mediation sessions I am often making referrals of mediation clients to just this type of legal assistance.

Can things talked about in mediation be used in court?

No. Mediation is a confidential process, where all that is discussed stays in the room. Settlement discussions, comments, options, or anything else brought up in a mediation session cannot be repeated in another proceeding. The typical exceptions to this is where previously unreported information is disclosed about possible abuse of a child, elderly or disabled person. The mediator is required by mediation ethical codes of conduct and usually by his or her contract for mediation to report such disclosures. Also, post-divorce mediations are typically not protected by confidentiality.

What if there is already agreement on some issues?

Fantastic! The first thing I want to do in mediation is identify what people already agree on. These points of agreement may then provide a foundation for an overall agreement. The standards that make sense to people on certain easy issues can often be applied to resolve other matters. It’s important that any agreement is well informed and that all parties are aware of the many issues, and options, they may want to consider. What ultimately is included in any agreement is up to those involved. My goal is to support well-informed decision-making.

Is arbitration the same as mediation?

People frequently confuse these two distinct processes. In arbitration, the people in dispute do not dialogue with each other or the arbitrator. Instead, they present evidence to the arbitrator, like written documents or testimony. The arbitrator then renders a decision. An arbitration hearing is a little like a trial, only much more informal. Rules of evidence are lax.  Arbitration is sometimes used in situations where mediation may not be appropriate and the formality and cost of a trial is not desired or needed.

What can people do to be ready for mediation?

The most important thing people can do to ensure a satisfying and successful mediation experience is to be clear as to their desired outcome and their perception of fairness. Stated otherwise: What do you want? What underlying interests and concerns of yours need to be addressed and discussed? How will you know that it is all right to agree?

With thanks to the International Academy of Collaborative Professionals for excerpts from its FAQs.