Q. What is mediation?
A. “Faster, Better, Cheaper” is a common mantra among those who have mediated important family, workplace and business matters.
Mediation is an opportunity for disputing parties to meet with a neutral third party who will facilitate a confidential dialogue around settling their unique dispute.
Mediation affords parties the power and freedom of choice to address head-on, and solve, the problems underlying their dispute in a private, confidential setting. Mediation typically avoids lengthy, costly, unpredictable adversarial legal battles.
Q. How does mediation work?
A. Depending on the situation, parties may talk with the mediator in a pre-mediation session where information about the what the conflict is and how that party sees it being resolved is shared with the mediator. Typically parties will then meet together with the mediator who will guide them through a dialogue about mutual identification of the problem(s) and solutions(s).
Depending on the situation, for example many workpace scenarios may be resolved in just one or two sessions. Family mattters may require more sessions depending on the complexity of the case.
Q. What is the mediator's role?
A. The Mediator facilitates and guides discussion, provides information (not legal advice) and helps parties structure their agreement.
Depending on the situation, mediators may encourage brainstorming and introduce negotiation scenarios, assign homework or suggest parties seek additional expertise. For example, a mediator may refer parties to an art appraiser for help with division of investments in art, or to a CPA for complex tax concerns.
Mediators assure each party has an opportunity to be heard and helps to develop a constructive dialogue focusing on each parties' needs, interests, and priorities.
Mediators foster an atmosphere of cooperation and respect, encouraging the parties to generate workable, mutually agreeable solutions with all parties’ best interests in mind.
A mediator is not acting as an attorney or advocate for either party. Mediators do not take sides or make decisions for the parties, nor do they provide legal advice, or evaluate cases for court proceedings.
Q. How is my privacy protected?
A. Generally, what is discussed in mediation stays in mediation.
With very limited exception, trained mediators are not subject to serve as witnesses in the case if it goes to court; records may not be subpoenaed, and records do not become part of a public court file. SBK Mediation shreds all notes at the completion of mediation retaining only
only contact and scheduling information about the parties and a copy of the final agreement. Ask your mediator about their individual policy on notes.
FYI Public Records:
You may not know that court records are public documents. When a judgment is issued - for or against you - that judgment sometimes impacts your credit report and can remain on file for 20 or more years. Credit reports are commonly viewed by prospective employers, landlords, lenders with each viewer interpreting the report as they see fit.
Even a court "win" could be interpreted as a negative on a lease or job application. Do you have lots of "wins"? Will you be viewed as contentious?
Reality Check (a mediator specialty):
Did you actually collect the full award from your win? How much time, stress and money did it cost? Your net benefit was - what?
Think about it - is the publicly accessible "win" really a win? Mediation can reduce or avoid that negative impact.
Q. If I choose mediation, do I lose any rights to future litigation or court process?
A. No. You lose no rights by choosing mediation. Mediation is voluntary.
Either party, at any time, can end mediation and seek alternate resolution including traditional legal process.
Mediation is a choice; A powerful choice to avoid the stress, cost, and time draining negativity of traditional adversarial legal proceedings.
Usually, more of the emotional issues surrounding the conflict are recognized, validated, addressed and resolved in mediation. Parties are generally better able to move on with life more quickly and comfortably when their conflict is truly resolved.
Privacy, dignity and control over outcomes are retained and respected in mediation.
Q. What are some additional benefits of mediation?
- Most mediated cases result in agreement - over 80%
- Mediated agreements typically settle at higher rates, with higher amounts, and much sooner as compared to adversarial court proceedings.
- Mediated agreements typically last, are modifiable by the parties when needed, and result in parties ability to get on with their lives much faster.
- Mediated agreements help to keep the need for court services, at taxpayer cost, to those situations that truly need court services.
Q. What types of disputes are best suited to mediation?
A. Just about any non criminal dispute can be worked through in mediation. Currently, the most popular field for mediation in the U.S. is divorce, separation and family matters of all kinds.
For example, mediating a mutually agreeable parenting schedule/plan, modifiable as children mature, is viewed as a far superior solution for families working through divorce, than the unpredictability and rigidity of a court ordered plan. Mediation of family matters often leads to improved communication between extended and blended family members life-long.
Other popular areas for mediation include:
- Employee/Employer/Worker Compensation
- Small Business including ownership division & non-competes
- Leases - Commercial and Residential Landlord/Tenant
- Government/Public Policy/ Regulatory/Administration
- Health Care/Personal Injury
- Technology/Intellectual Property
- Prisoner Re-entry Programs
- Community matters for example, condominium association or neighbor-to-neighbor disputes.
Q. What if I want to mediate and want an attorney?
A. Go for it!
Often, civil, consumer and small business matters may not require an attorney depending on your comfort level negotiating an agreement on your own. It's wise to know what your legal rights are in any case. Checking in with an attorney before deciding to litigate or mediate is a good idea.
Complex business and personal matters commonly involve parties retaining independent attorneys as consultants to advise them throughout the mediation process.
The mediator facilitates discussions leading to agreement, often drafts the agreement, and typically recommends each party retain independent Counsel to assist them throughout the process, including reviewing agreements before signed.
The time an attorney spends (thus bills) for each party as a consultant is usually significantly less than would have been spent engaging in highly charged, adversarial negotiations and court proceedings that can drag out for years before any resolution is reached... and then there are appeals. Yes, divorce appeals too, ouch!
Attorneys may participate in mediation with the parties. In all cases, it’s wise to consult with an attorney early on, if for no other reason than to help you be more confident in your decision to mediate.
Q. My attorney is also a mediator - I'm confused. How do I know what kind of mediator to hire?
A. More and more attorneys, other professionals too, are training in mediation.
The choices can be confusing. One of the mutual challenges of both the mediation and legal fields is to lessen the confusion.
Mediation is a powerful choice. An alternative to mediation is litigation which is typically what parties want to avoid.
When an attorney trains to wear the mediation hat, you have an option to either retain the attorney to act as your advocate/advisor/litigator/fighter or ask the attorney to wear the neutral facilitator hat.
When the attorney wears the neutral facilitator hat, the attorney is no longer able to provide legal advice or to take sides and act as an advocate/litigator/fighter.
Many trained mediator - attorneys struggle with changing hats from advocate/advisor/litigator/fighter to neutral facilitator... yet they can be extremely good at it.
Since mediators come from diverse professional backgrounds, it is in your best interest to interview more than one professional before deciding who to mediate with. Remember, personality matters, and all parties must agree to work with the mediator.