Frequently Asked Questions About Mediation

December 11, 2007

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.

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