What is Mediation?
Mediation is a method for negotiating a settlement agreement out of court, using a neutral third person to manage direct negotiations between the clients. In mediation, the clients retain decision making power instead of turning it over to an outside authority such as a judge or arbitrator. Usually the clients speak for themselves instead of through lawyers. The mediator facilitates the exchange of information and documentation, identifies the issues, and moderates the discussion to keep it on track and constructive. The mediator educates the clients about general principles of statutory or case law but does not give legal advice in the adversarial sense. Mediation may be used for separation agreements, divorce, child custody, guardianship of children, adoption, disputes over wills, trusts and estates, and other matters.
What Happens in the Mediation Process?
The clients to the mediation meet together with the mediator moderating. In the first stage of this process, the mediator ascertains what are the legal issues and the clients’ values and concerns related to them. The mediator coordinates the mandatory completion of disclosure forms and exchange of information and documents, identifies the issues, and reframes them by restating them in terms of the underlying concerns and objectives of each client. In this restatement of the issues, the mediator edits out any negative emotions of anger and blame and helps the clients focus on understanding each other’s point of view without expecting either of them to give up his or her own essential position. The mediator helps each client to prioritize his or her concerns and objectives and to compare them with the priority list of the other client.
Next, the mediator helps the clients to generate multiple options for settlement. The mediator will also add options which the mediator has seen used in other cases with similar situations. Then, the mediator assists each client in assessing the pros and cons of each option and analyzing which option meets most of that client’s priorities, needs, and goals. Finally, the mediator asks each client to consider areas in which he or she might be able to compromise while still attaining enough of his or her goals to feel successful.
In agreeing to mediate, each client commits to pursuing a result which not only takes care of himself or herself, but also is reasonably fair to the other client. When each client sees and hears the other sincerely attempting to analyze his or her own proposals in terms of mutual fairness, a cooperative environment develops. Each client is then inclined to be more flexible and able to compromise on some items, allowing the other client to get a reasonable amount of his or her priorities met, provided that the compromising party is also getting the same result for himself or herself.
Even though the pie that the clients are dividing up usually does not get physically bigger, the solutions are more customized to the personal goals of each of them. Each client feels that a “win-win” solution is achieved because the approach to the other is mutually fair instead of “win-lose”. This amicable approach does not entirely eliminate the tension inherent in the process of competing for limited assets, but it does keep the negotiation process rational, courteous, and ethical.
Mediation is a highly efficient method for working through a legal dispute. The time spent in organization and exchange of information at the beginning is more than offset by the saved time and money which would have been expended in the traditional adversarial system to conduct formal legal discovery, develop trial strategies, and fight in court.
Does Mediating Allow Me to Consult Privately With My Own Legal Counsel?
Each client is free to employ his or her own consulting attorney to provide that individual client with confidential evaluative legal counsel outside of mediation sessions. Depending on the type of mediation model used, each client may either see his or her own consulting attorney between mediation sessions or they may bring their consulting attorneys with them to participate in the mediation meetings. In most divorce mediation cases, the clients choose not to bring their attorneys with them to the mediation sessions but the mediation may be restructured to permit them to do so. If there has been court litigation and the parties want to engage in mediation, the parties (and their court attorneys, if any) must agree in writing to suspend the litigation process while mediation is in progress. If a client has an attorney of record in the case being mediated, that attorney must give the mediator written permission to mediate with his or her client without the attorney being present.
Who Writes Up the Mediation Agreement?
Faith Jansen, as mediator, will write up a proposed settlement agreement as a rough draft after the completion of the formal disclosure process, when all the issues to be decided have been discussed in mediation sessions. Each client may take this proposed rough draft to his or her own confidential outside consulting attorney. Either client may ask for corrections or changes to the rough draft. Proposed changes may result in additional mediation sessions or three-way telephone conferences between the clients and the mediator.
How Does the Mediation Agreement Get Made into a Court Judgment or Order?
If the clients are self-represented, Faith Jansen’s legal staff will arrange for the filing of all the pleadings (legal forms) necessary to obtain an uncontested judgment or stipulation for order without a physical court appearance. Any court forms filed by Ms. Jansen’s office staff will indicate that the parties are self-represented unless a client has an attorney of record in court. If a client has an attorney of record, that attorney must review, approve and sign anything which his or her client intends to sign.
How Long Will Mediation Take?
The number hours it takes to mediate a case depends on the complexity of the legal and financial issues as well as on the communication dynamics of the participants.
How Do I Select a Mediator?
Prospective clients may schedule a confidential Mediation Orientation appointment to find out whether they have rapport with Faith Jansen and to learn more about her mediation process. All participants in the dispute should attend the Mediation Orientation. Alternatively, if the participants to the dispute are represented by attorneys, the attorneys may contact Faith Jansen to refer the clients to mediation. To schedule a Mediation Orientation, Contact us.