Mediation FAQs

What kinds of cases can be mediated?

Answer:

Most civil (noncriminal) disputes can be mediated, including those involving contracts, leases, small business ownership, employment, and divorce. For example, a divorcing couple might mediate to work out a mutually agreeable child custody agreement, or estranged business partners might choose mediation to work out an agreement to divide their business. Nonviolent criminal matters, such as claims of verbal or other personal harassment, can also be successfully mediated.

Finally, you may want to consider mediation if you get into a scrape with a neighbor, roommate, spouse, partner, or co-worker. Mediation can be particularly useful in these areas because it is designed to identify and cope with divisive interpersonal issues not originally thought to be part of the dispute. For example, if one neighbor sues another for making outrageous amounts of noise, the court will usually deal with only that issue. If the court declares one neighbor a winner and the other a loser, it may worsen long-term tensions. In mediation, however, each neighbor will be invited to present all issues in dispute. It may turn out that the overly loud neighbor was being obnoxious in part because his neighbor’s dog constantly pooped on his lawn or his neighbor’s pickup blocked a shared driveway. Because mediation is designed to look at and fix the bigger picture, it’s a far better way to restore long-term peace to the neighborhood, home, or workplace than going to court.

How long does mediation take?

Answer:

Many mediation cases, such as consumer claims, small business disputes, or auto accident claims, are usually resolved after a half day or, at most, a full day of mediation. Cases with multiple parties often last longer…. Major business disputes — those involving lots of money, complex contracts, or ending a partnership — may last several days or more.

Private divorce mediation, where a couple aims to settle all the issues in their divorce — property division, alimony, child custody, visitation, and support — generally requires more mediation sessions spread over several weeks or months.

How is mediation different from arbitration?

Answer:

A mediator normally has no authority to render a decision. It’s up to the parties themselves — with the mediator’s help — to work informally toward their own agreement. An arbitrator, on the other hand, conducts a contested hearing between the parties and then, acting as a judge, rends a legally binding decision. Arbitration resembles a court proceeding: Each side calls witnesses, presents evidence, and makes arguments. Although arbitration has traditionally been used to resolve labor and commercial disputes, it is growing in popularity as a quicker and less expensive alternative to going to court.

Arbitration has its critics, however. There has been a lot of controversy lately about big businesses requiring their customers or employees to arbitrate disputes with them, rather than taking those disputes to court. Often, these arbitrations are conducted under rules that favor businesses — for example, damages are limited, time limits for filing a claim are shortened, or information sharing is cut off. Some courts have ruled that businesses can’t require consumers and employees to participate in these one-sided proceedings, although others have ruled differently.

How can I be sure mediation will produce a fair result?

Answer:

In mediation, you and the opposing parties will work out a solution to your own dispute. Unless you freely agree, there will be no final resolution. This approach has several advantages over going to court:

• Legal precedents or the whim of a judge will not dictate the solution.
• If your dispute has undiscovered or undisclosed issues, mediation — unlike a structured court battle — gives you the opportunity and the flexibility to ferret them out.

Because mediation doesn’t force disputants to undergo the fear and sometimes paranoia of the courtroom — where a judge or jury can stun either party with a big loss — people who choose mediation tend to be more relaxed and open to compromise.

What are the stages of mediation?

Answer:

While mediation is not as formal as going to court, the process is more structured than many people imagine. A typical mediation involves six distinct stages.

Mediator’s Opening Statement: After the disputants are seated at a table, the mediator introduces everyone, explains the goals and rules of the mediation, and encourages each side to work cooperatively toward a settlement.

Disputants’ Opening Statements: Each party is invited to describe, in his or her own words, what the dispute is about and how he or she has been affected by it, and to present some general ideas about resolving it. While one person is speaking, the other is not allowed to interrupt.

Joint Discussion: The mediator may try to get the parties talking directly about what was said in the opening statements. This is the time to determine what issues need to be addressed.

Private Caucuses: The private caucus is a chance for each party to meet privately with the mediator (usually in a nearby room) to discuss the strengths and weaknesses of his or her position, and new ideas for settlement. The mediator may caucus with each side just once or many times, as needed. These meetings are considered the guts of mediation.

Joint Negotiation: After caucuses, the mediator may bring the parties back together to negotiate directly.

Closing: This is the end of the mediation. If an agreement has been reached, the mediator may put its main provisions in writing as the parties listen. The mediator may ask each side to sign the written summary of agreement or suggest they take it to lawyers for review. If the parties want to, they can write up and sign a legally binding contract. If no agreement was reached, the mediator will review whatever progress has been made and advise everyone of their options, such as meeting again later, going to arbitration, or going to court. (NOLO.)

However, one of the most important stages of a successful mediation, may be an initial process that is often overlooked. It is what is referred to as “convening.”  Convening gives the participants an opportunity to get acquainted and comfortable with the mediator, developing a rapport, prior to discussing the specific issues involved in the matter to be mediated.  This provides a foundation for trust in the process and the mediator, so that once substantive discussions begin, the parties are prepared to engage fully and in earnest.

Additionally, the parties may be asked to provide briefs to the mediator. Whether those briefs are to be shared with the other side is up to the parties. This initial preparation for the mediation vastly increases the efficiency and value of the mediation discussions.