Mediation is a process in which an impartial third party (mediator) helps parties in conflict find their own workable, practical and effective solutions. The mediator directs the process and provides an environment and tools whereby those solutions and agreements can be reached by the parties, not the mediator. Because the parties formulate the solution, rather than having someone dictate one, the result is much more satisfying and usually works better.
Mediation is a voluntary process. Usually one of the parties involved suggests it and the other agrees to participate.
Mediation is particularly appropriate in situations where the participants have an ongoing relationship, have had one in the past and/or will continue to have one in the future. Bad feelings and win/lose resentments which court litigation commonly results in are avoided. This applies particularly to any family, ongoing business and/or employment situation.
All aspects of the mediation process are, by law, confidential. Therefore, parties are able to raise issues freely and discuss things that they might not want made public in court documents and proceedings. An agreement resulting from the mediation may become public or be filed as a court document when the participants agree to have that happen.
Frequently Asked Questions
WHO PAYS FOR MEDIATION?
While any one or more of the participants in mediation may agree to pay for the process, it is most common for all the participants to share the cost equally. By sharing the cost, each participant is making a commitment to make the process work.
HOW LONG DOES MEDIATION TAKE?
This depends on the kind of matter being mediated. Divorces or employment situations which are simple may be worked out in a couple of two hour sessions with the mediator preparing the paperwork for the agreement of the parties. More complex divorces or other kinds of disputes may take several more sessions. Some business or organization disputes are handled in one full day session.
DOES A MEDIATOR MAKE RECOMMENDATIONS OR DECISIONS?
A mediator does not make decisions for participants, although she may give guidance to parties from her knowledge of court case outcomes. Parties are always advised to seek independent legal advice from an attorney that is acting as his or her own advocate before signing any final agreement. In some situations, the parties may decide to have a mediator act as an arbitrator (Med-Arb) if they are unable to reach an agreement.
DO LAWYERS PARTICIPATE IN MEDIATION?
In some kinds of cases, such as employment or business matters, lawyers may sit in on the mediation with their clients. In other kinds of cases, such as divorces, lawyers will give participants advice, but not sit in on the actual mediation sessions. Even where lawyers are present, the purpose of the mediation is to have the participants speak for themselves. Participants are always advised to talk to a lawyer before signing any final agreements.
WHAT HAPPENS IF AN AGREEMENT IS REACHED?
The mediator will usually work with the participants to draft a document that incorporates the agreement of the parties. Depending on the kind of case being mediated, that document and/or others may need to be reviewed and finalized to be filed with a court. The documents that are filed with the court are usually prepared by a lawyer.
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