Most mediation participants engage in mediation with the hope of obtaining a binding agreement. Therefore, at the end of the mediation, the mediator assists the parties in committing their agreements to writing in a binding format. The agreement, if it includes the proper information, will be a binding contract, enforceable in Court.

A good mediation agreement will include:

• The names of the parties and date of the mediation.
• A brief statement of the nature of the dispute.
• Agreements on how the parties will relate to each other in the future, and what responsibilities each party holds.
• The date and signature of the parties and the mediator.

A word about signing: the signer should be of the age of majority, have the mental capacity to sign and have the authority to sign. A party signing on behalf of an organization should indicate that capacity with the signature. The mediation participants cannot bind a person or organization who was not party to the mediation or who did not sign the agreement.

A good agreement should also meet the S.M.A.R.T. test: Specific, Measurable, Action- oriented, Reasonable and Timely. The writing in a mediated agreement should be simple (no legalese), clear, and concise. It should be balanced and create mutual obligations, so that both parties feel that they are giving and getting something.

In addition, the agreement should also spell out whether it is resolving just some or all of the outstanding issues. Finally, mediation agreements should also include an agreed to method to resolve future conflicts.

While the mediator generally acts as a scribe, it is the parties that generate the language. Mediation participants who feel that they “own” the agreement are much more likely to comply. As always, a participant who has any questions about the legality of an agreement should consult with an attorney.
Alona M. Gottfried is a mediator and attorney in Arizona. She can be reached at: 480-998-1500 or Alona@SGLawAZ.com.

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.

Co-mediation is a mediation that uses two mediators. The mediators work as a team to assist the parties in resolving their conflict. Co-mediation is beneficial in a number of situations.

In complex mediations, sometimes two heads are better than one. One mediator can, for example, take notes and observe while the other mediator asks questions. Or, one mediator can focus on the details, while the other focuses on the big picture.

Having two mediators who can divide tasks may also accelerate the process. For example, each mediator can caucus (meet individually) with one of the participants at the same time, making the mediation more efficient.

Two mediators may also be beneficial when the mediators have varying skills. For example, the participants may want one mediator who is an expert in one particular field and another mediator that is an expert in a different field.

In mediations with many participants, two mediators provide more attention to each individual. As a result, the participants may experience a greater feeling of being heard. Further a participant is more likely to develop trust with at least one of the mediators. It is important, however, to make sure that the participants do not feel that one of the mediators is “their” mediator and biased in their favor.

Sometimes, to feel comfortable, participants need their differing ethnicities, genders or ages represented in the mediators. For example, in family law mediations, it sometimes makes the participants more comfortable to have mediators of both genders present. A male participant may otherwise feel that a female mediator would favor his wife, or vis versa. In a mediation involving discrimination issues, it may make a difference to have mediators of different races or ages. Two mediators with different language skills are also helpful when the participants speak two or more different languages.

With co-mediation, the mediators can model good problem solving for the participants as well. Co-mediation is also used to train less experienced mediators.

For co-mediation to work, the mediators have to know how to work together and plan the mediation and their respective roles carefully. Otherwise, two mediators could create distractions that make resolution less likely.

Some people are concerned that co-mediation costs more than single-mediator mediations. It may not cost more if co-mediation in fact results in the mediation being more efficient and less time consuming. Further, if co-mediation is what is needed to resolve the matter, then it is worth the cost.

Alona M. Gottfried is a mediator and attorney who co-mediates upon request with Jared C. Simmons, Esq. She can be reached at 480-998-1500 or Alona@SGLawAZ.com.

Simmons & Gottfried, PLLC

January 23, 2009

On January 16, 2009 Alona M. Gottfried, Esq. and Jared C. Simmons, Esq. launched a new law and mediation Firm: Simmons & Gottfried, PLLC.

Simmons & Gottfried, PLLC offers legal services in the areas of family law, collaborative divorce law, business law, commercial law, employment law, transactional law and personal injury.  The Firm also offers a full range of mediation services. Mediation can be used to resolve business disputes, law suits and potential law suits, divorces and other family law and domestic partnership disputes, real estate disputes and many other areas of disputes.

Mr. Simmons graduated from Arizona State University in 1991 with dual Bachelor of Science degrees in Psychology and Political Science. In 1996, Mr. Simmons earned his Juris Doctorate from Southern Methodist University College of Law, graduating in the top third of his class. Mr. Simmons is licensed to practice before all courts in the states of Arizona and Texas where he handles a broad variety of civil practice areas including: complex civil litigation, construction litigation, business litigation and, business formation and presentation, as well as mediation. Mr. Simmons devotes his free time to his wife and three sons.

Ms. Gottfried has been a practicing attorney in Arizona since 1995.  A native of Arizona, Ms. Gottfried received her bachelor’s degree in psychology from Arizona State University (Summa Cum Laude; Phi Beta Kappa) and her law degree from the College of Law at Arizona State University (Cum Laude).  Ms. Gottfried is admitted to practice in Arizona and before the United District Court and United States Supreme Court.  Ms. Gottfried practices family and employment law and is also a trained Mediator, a Mediation instructor and a trained Collaborative Divorce Attorney.

The Firm is located at:  3877 N Seventh St. Suite 340, Phoenix, AZ 85014-0001.  The phone number is: 480-998-1500, and the fax number is 480-998-6074.  Mr. Simmons’ e-mail address is: Jared@SGLawAZ.com, and Ms. Gottfried’s e-mail address is: Alona@SGLawAZ.com.

There are three recognized styles of mediation:  facilitative, evaluative and transformative.

In the facilitative process, the mediator structures the mediation and guides the participants gently by asking questions and assisting the participants in developing and analyzing possible resolutions.  The mediator does not share his/her opinions or give advice to the participants.  The participants may or may not remain in the same room during the mediation, depending on the level of acrimony between the participants and other factors.

In evaluative mediation, the mediator is selected for his/her expertise in the area in the dispute.  The mediator offers his/her opinions as to possible outcomes and the reasonableness of positions of the participants.  Themediator may also make recommendations as to possible resolutions.  The mediator is generally an attorney and attorneys are generally present representing the participants.  The participants tend to be placed in separate rooms, and the mediator shuttles back and forth between them.

Transformative mediation gives the participants the power to guide the mediation and transform their relationship themselves.  The participants stay in the same room to facilitate discussions and transformation.  It is the newest form of mediation and is used by such entitites as the United States Postal Service.

Good mediators tend to use techniques from each type of mediation, as the situation requires.  If you choose to commit to one particular process, choose the type of mediation that appeals to you most.   There is not a bad choice.  Any type of mediation is almost always better than any other method of conflict resolution, when parties are interested in resolving conflict and focusing on other, more positive aspects of their lives.

Alona Gottfried is a mediator and attorney with Simmons & Gottfried, PLLC and can be reached at alona@sglawaz.com or 480-998-1500.

When litigation can cost tens to hundreds of thousands of dollars, who can afford to litigate in this economy?  Okay, who can afford to litigate other than the bailed out banking institutions?

Conflicts do not generally dissipate when money is short.  In fact, more conflicts tend to arise when money is short.  It has been said that money issues is one of the top causes for relationship problems.  Further, with a bad economy, more people are failing to comply with contractual terms, such as repaying a loan.

The bad economy has sent companies and individuals alike back to the drawing board to look for new ways to do things.  For example, people are cutting coupons, and companies are cutting employees.

Perhaps the economy is the impetus people /companies need to try mediation instead of litigation.  Mediation is generally a much less expensive process than litigation.  Instead of paying two attorneys and often multiple experts for their assistance over a period frequently lasting a year or more, both parties pay one mediator who can often help resolve the conflict in a couple of days or less.

Mediation makes good sense, especially when you are short on dollars and cents.

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: 480-998-1500 or Alona@sglawaz.com.

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.

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

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:480-998-1500 or Alona@sglawaz.com.

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.