What is mediation? Mediation is a problem-solving process in which a neutral, skilled person – the mediator – helps the parties to a dispute reach a voluntary agreement. The mediator does not decide how the dispute should be resolved, but instead helps the parties develop agreements that are satisfactory to all parties.
What are the advantages of mediation? As compared to litigation, mediation is much quicker, less expensive, less time-consuming, and easier on the parties’ relationships. In mediation the parties control the outcome through their negotiated agreements so they avoid the risk of litigation. They are also able to fashion creative solutions to their conflicts that courts are unable to provide.
Even when litigation is not an option, mediation can be a valuable tool. The mediator can help the parties or their attorneys communicate more effectively, provide an effective structure for the negotiation, and provide creative suggestions for resolving the conflict.
How does mediation work in civil cases? In mediation of civil disputes (other than divorce or post-decree disputes) the parties are almost always represented by attorneys. The mediator usually begins the mediation with a joint session to explain the mediation process and ground rules, though in some cases, such as sexual harassment cases, the parties may never meet face to face.
Sometimes the parties and/or their attorneys make opening presentations to each other and the mediator, in order to share their perspectives on the disputes and clearly delineate the issues. Our mediators will often bypass the opening statements if they do not believe that the statements will shed useful light on the disputes and may cause parties to feel defensive or annoyed. Our mediators’ goal is to establish a climate for productive negotiation. We approach the mediation with the assumption that the parties have come with a desire to reach an agreement if their interests can be met, and we do what we can to achieve that goal.
After the opening session, the parties retreat to separate conference rooms (caucuses) and generally the mediator moves between rooms with information, proposals, and counterproposals.
When the mediator determines that certain information is needed for the parties and their attorneys to be comfortable making the decisions they must make as negotiators, the mediator will work to see that the information is made available.
Throughout the process the mediator helps the parties evaluate the case, identify the fundamental interests that they hope to meet, consider what will happen if the dispute is not settled, develop ideas or options to deal with various issues in the dispute, and formulate proposals that move the process toward agreement.
When an agreement is reached the mediator typically brings the parties and their attorneys together to confirm the terms of the agreement. Sometimes, but not always, the agreement is reduced to a written “memorandum of settlement” that is signed by the parties and the attorneys at the close of mediation.
How does mediation work in divorce and post-decree cases? In most divorce and post-decree mediations, the parties participate without having their lawyers present. We strongly encourage all parties to have lawyers that they can consult with throughout the process for advice. Occasionally the mediator will schedule sessions that do include the lawyers.
Most of the mediation work in divorce and post-decree cases is done with the parties together, though our mediators do meet privately with the parties (in caucus) whenever that is necessary.
Our mediators typically schedule two-hour sessions in divorce mediations because we find that the emotional component of these cases makes longer sessions too stressful for the parties. In addition, the decision-making process seems to work best if the parties have time between sessions to develop information, consult with their attorneys and get prepared for the next session.
How long does mediation take in civil cases? In civil mediations, we usually schedule a full day for all disputes other than small dollar personal injury cases. Not all cases take a full day, but we like to allow adequate time in case it is needed. Some cases will require more than one day if the issues are especially complex or if necessary information is identified and has to be developed before discussions can continue productively. Sometimes the attorneys and the mediator will schedule two or even three days back-to-back because they know that the mediation cannot be completed in a single day. In other cases the parties agree to schedule additional days as the mediation unfolds.
How long does mediation take in divorce and post-decree cases? A new divorce case usually takes between 4 and 6 sessions. A post-decree case often can be resolved in 2 to 4 sessions. Each session is scheduled for two hours. The sessions are usually set two weeks apart to permit time to consult with counsel, collect needed information, and to consider settlement options that have been developed. The length of each case is really determined by the complexity of the issues and the amount of conflict between the parties; therefore, only a rough estimate can be given at the outset of the matter. Sometimes participants elect a slow approach -- sometimes they move matters along quickly.
Who pays for mediation? Typically the parties share the fees for mediation on an equal basis, though sometimes the parties agree that one party will pay all or most of the fee. We prefer that all parties pay some portion of the fee because we want all parties to have some “ownership” of the mediator and the process.
For specific information about the fees for a particular dispute, please contact the Center.