Frequently Asked Questions About Mediation

What is mediation?

Mediation is a way to resolve disputes in a prompt, efficient and cost effective manner.   Mediation allows participants to maintain control over their lives and, in a dignified and satisfying way, clarify issues and resolve conflicts. Mediation promotes future cooperation, not continued conflict. In mediation, participants themselves, with the mediator’s impartial assistance, resolve their own dispute, seeking fairness and the maximization of benefits. Family, business, property, employment, organizational and other disputes can be effectively mediated to a fair and constructive resolution that participants believe in and with which they will comply.  Mediation offers the opportunity for people or groups in conflict to move forward with their lives and businesses in a positive manner. 
Mediation is the fastest growing alternative to litigation.  Many courts around the world require parties to participate in mediation prior to litigation because of mediation’s exceptional effectiveness.  

How does mediation work?

A neutral third party (the mediator), helps the parties find solutions to conflicts that are optimal for both parties by using conflict resolution skills.  The process is confidential to encourage all parties to feel comfortable.  A successful mediation ends with a binding agreement of the parties.  

What happens during mediation?

Generally, the participants first meet together as a group, and the mediator explains what will happen, and the ground rules.  The participants sign a confidentiality agreement.  Where appropriate, each participant gives a brief statement of the conflict.  The participants will either stay in the same room together, while options are explored, or the mediator will put the participants in different rooms.  The mediator may meet with each party separately in what is called a “caucus.”  Once the parties have reached an agreement, the parties will draft a binding settlement agreement together.  

What are our chances for success?

The good news is that most mediations are successful.  The mediation should include a skilled mediation and parties that are willing to be reasonable, forward thinking and, sometimes, creative.  

 What if we don’t reach agreement?

In mediation, all discussions and materials, with very few exceptions, are confidential. If no mediated agreement is reached, evidence of the mediation discussions, mediation materials and any draft mediation resolutions will not be admissible in any court or other adversarial proceeding. 

What disputes are appropriate for mediation? Mediation is appropriate for most disputes.  This includes family law disputes (divorce, paternity, non-parent rights, modifications .. . .), employment disputes, property disputes, business disputes, personal injury and malpractice disputes among other types of disputes.  

When is the best time to mediate a dispute?It makes sense in most cases to mediate as early in the dispute as possible - before animosity increases and before the parties put substantial time, money and energy into the conflict.  However, the participants can mediate at any point.  Participants can mediate with or without pending litigation.  

Do I have to be in the same room as the other party?

Generally, mediation starts with the parties and the mediator meeting together and exchanging a general understanding of the conflict.  The parties often then break up and meet with the mediator one and a time.  The mediator may meet with each party dozens of time during the course of the mediation process. 

Can I bring an attorney?

In some mediation discussions, attorneys are present and represent the parties. In other mediation discussions, attorneys are not present, but are available as an outside resource for consultation. Participants need to decide how actively involved, if at all, they would like legal counsel to be.  Participants may also choose to use experts, such as financial experts, child specialists, appraisers and counselors. 

Alona M. Gottfried is a mediator and family law attorney in Arizona.  She can be reached at: 480-994-8824 or agottfried@urme.net.  You can learn more about Ms. Gottfried and mediation at www.urme.net. 

This Article is designed to be of general interest and should not be considered legal advice. The specific information discussed may not apply to you. Before acting on any matter contained herein, you should consult with your personal legal adviser.

Mediate Your Domestic Dispute

How do you divide assets at the end of a relationship when you were never married?  This is a problem for countless gay people, who cannot marry, and other people who chose not to marry.  According to the U.S. Census bureau of 2000, over five million Americans are living in a “unmarried-partner household.”  The relevant portion of the chart is reproduced below:

UNMARRIED-PARTNER HOUSEHOLDS
Total	5,230,703	100.0
Male and female	4,571,992	87.4
Both male	332,645	6.4
Both female	326,066	6.2

If you are married, the Courts, at least in Arizona, will kindly assist you in dividing assets in the divorce process.  The Courts will also decide if one person needs some financial support at the end of a relationship (spousal maintenance or alimony) and make amends for community waste (one party destroying, wasting or hiding assets).  Further, the Courts may allocate the cost of litigation where there is a disparity in income or where one person has taken unreasonable positions.  Finally, the Courts will protect people going through a divorce from such things as harassment and the destruction of property by issuing a Preliminary Injunction, prohibiting such conduct. 

What do you do if you were not married and you cannot agree on how to divide assets?  You can file a civil action to partition property in both owner’s names.  You can also file an action or contact the police to try to recover your separate property that your former partner took, if you can prove ownership. 

Or, you can go to mediation.   Mediation is a non-adversarial process where people experiencing conflict can resolve their disputes with the aid of a neutral mediator, trained in conflict resolution.  In mediation, the parties enter an agreement to discuss their issues in a confidential setting.  The mediator works with the parties to arrive at mutually acceptable solutions.  The parties are not restricted to solutions that may be available in Court.  For example, unmarried parties could agree to a payment from one party to the other, to help that party get back on his/her feet.  

The mediator can work with the unique dynamics of a particular relationship.  For example, some people may feel better sitting in separate rooms while discussing assets.  Others may succeed sitting all together with the mediator.  Some people want to complete the mediation at one sitting.  Others want to take time and complete the mediation over a number of sessions.  Experts can also be used to provide information, such as information about the value or most advantageous division of property.

Any agreement reached at the end of the mediation can be binding, if the parties want it to be.  The mediator can help the parties reduce the agreement to writing and give it the same legal effect as any other contract between parties. 

Mediation is highly successful (some quote a 90 percent success rate), empowering, confidential, and often quicker and less costly than other options.  Mediation is a good option for almost any type of conflict, and it may well be the only option for some domestic disputes. 

Alona M. Gottfried is a mediator and family law attorney in Arizona.  She can be reached at: 480-994-8824 or agottfried@urme.net.  You can learn more about Ms. Gottfried and mediation at www.urme.net. 

This Article is designed to be of general interest and should not be considered legal advice. The specific information discussed may not apply to you. Before acting on any matter contained herein, you should consult with your personal legal adviser.

Mediate Your Divorce

You are getting a divorce.  You may not have chosen this situation, but you can choose how you resolve the divorce. 

You have options.  Most people are only familiar with the option of litigation.  Litigation is the process by which the parties become adversaries and argue for what they want in Court.  Ultimately, absent an agreement of the parties, a Judge will decide what happens with your assets, debts and children.  Judges tend to have a lot of discretion in family law cases, so going to Court is somewhat of a gamble. 

The litigation process is sometimes accompanied by high attorney’s fees bills.  The parties usually spend their time litigation - sometimes over a year - angry and upset.   When one or both of the parties is unhappy with the ruling, anger, and even retribution, can continue for many more years. 

Where there are children of the marriage, they are often the biggest victims of divorce litigation.  They feel the stress of their parents and are especially injured when one or both angry parents use the children to hurt the other parent. 

Mediation is another alternative, which has been whole heartedly embraced by many states and countries.  It is a confidential process where the parties, with the assistance of a skilled neutral, work to reach their own solutions.  It is empowering, cost-effective, time-effective and it works.  Those who keep track place the success rate at around 90 percent.  

Mediation does not work by magic; both parties have to be willing to:  work hard; focus on the future, rather than the past; and be creative.  The mediator uses conflict resolution skills to help the parties to create realistic solutions that both parties can accept.

The parties can jointly agree to use outside experts for advice, where appropriate.  For example, the parties can hire appraisers to value property, or child specialists to come up with an access schedule in the children’s best interests.

The parties do not have to use attorneys in mediation, but they can if they would like.  Attorneys sometimes attend the mediation sessions with the parties, and sometimes they simply review agreements before they are entered. 

Generally, the mediation process starts with both parties sitting in a room with the mediator.  The parties sign confidentiality agreements and discuss the process.  At any point, the parties can proceed in separate rooms.  This is often a desirable set-up in high conflict cases.  The mediator will then work with both parties to reach common ground.  At the end of successful mediations, the parties generally reduce their agreement to writing that is then binding on them.  Final papers can then be drafted for submission to the Court.

At full service mediation firms, such as Unlimited Resolutions Mediation, Inc., where this author works, the mediation firm drafts all the paperwork for the parties, thereby further simplifying the process.  Most people do not want to have to worry about Court rules and paperwork.  A divorce with no children can cost $3,500.00, including five hours of mediation.  A divorce with children can cost $4,000.00.  The parties generally split the cost or take the cost from joint assets.  By contrast, a hotly contested divorce case can cost each party over $50,000.00.   Most people have better things to do with their money. 

In summary, mediation may not be for everyone, but it is for most people.  If you like the idea of a divorce resolution process that de-escalates conflict, puts you in charge of the outcome of the divorce, and provides an effective and confidential forum for resolution, then mediation is for you. 

Alona M. Gottfried is a mediator and family law attorney in Arizona.  She can be reached at: 480-994-8824 or agottfried@urme.net.  You can learn more about Ms. Gottfried and mediation at www.urme.net. 

This Article is designed to be of general interest and should not be considered legal advice. The specific information discussed may not apply to you. Before acting on any matter contained herein, you should consult with your personal legal adviser.

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