Mediation is simple in theory and complex in practice. Basically, it involves using a neutral third party to help people resolve their differences. It can be as simple as a parent helping two children decide how to share a single toy or as complex as Jimmy Carter brokering a peace treaty between the Israelis and Egyptians. Hundreds of books have been written on the practical problems facing mediators; college courses and degrees are offered on mediation and other forms of conflict resolution; and most courts now require parties to mediate before a trial.
A mediator is a person who has learned through training and experience how to remain impartial and calm in the midst of high emotions, to reframe disagreements and to help people recognize and understand the interests of opposing parties. He or she brings an outside perspective, a creative mind and new insights to your specific problem.
Many mediators also have a law degree and experience in practicing law or acting as a judge. These are not a requirement for mediation and certainly are no guarantee of quality in a mediator. In fact, many attorneys and former judges find it difficult to set aside their habits of arguing and judging in order to remain neutral.
A trained mediator has completed at least an intensive course in mediation theory and techniques under the tutelage of a respected and experienced mediator; some will have a college degree in conflict resolution that usually is offered in conjunction with a law school.
Each case will be different, but you can expect certain commonalities. First, the mediator will need to learn more about your conflict. He or she may obtain written information from you, may meet with you individually or may simply ask questions during your first session. After identifying the issues and establishing some ground rules, the mediator will talk with you and the other party in the dispute trying to understand the issues and the interests and find solutions. When part or all of the issues are resolved to your satisfaction, the mediator will help craft a "memorandum of agreement."
Sometimes the most difficult part of mediation is getting up the courage to face the other party, whether it's a spouse, a work supervisor or an angry HOA member. A good mediator understands that and will try to create an environment where both sides feel "safe" to express themselves and their positions. Pre-mediation sessions might be useful to discuss appropriate communications and how to express genuine emotions so that the other party adequately understands your feelings and interests. However, if face-to-face meetings are too uncomfortable or impede the process, mediators can meet separately in what we call "caucuses." When to do so is determined on a case-by-case basis and should be discussed with the mediator.
Mediation can take as long as the parties require and decide to use. Typically, single mediation sessions take between two and four hours, but can run longer, before the parties need a break. Parties will break for a day, a week or a month. They may settle one issue, such as custody and parenting time, on a temporary basis and try it out for a month or two before returning to adjust the plan. Two parties might be unable to agree today, but will decide in six months to try again.
Attorneys are not required for mediation, but if you have an attorney and he or she wants to participate, that's fine. We generally recommend that each party consult with an attorney before entering into any binding legal agreements, but that is your decision.
Not all mediation is successful. If so, you still have arbitration or court litigation available to you. Even if you have resolved only some of the issues before heading to court, you can save time, emotions and money over the long term by requiring less court time and preparation. Remember as well, that the mediator remains available to help with those unresolved issues.
The mediation process is confidential by law and agreement. If meeting separately with the parties, the mediator will maintain your statements in confidence unless authorized to convey them to the other side. One exception might occur if you or the other party threatens or reveals harm or other illegal activity.
Mediation consists of helping parties to reach a creative solution based on their individual interests. Arbitration is asking a third person to make a decision. Consider the following situation. Two children are arguing over a piece of cake. They go to a parent (Let's call him or her "your Honor") who simply cuts the cake in half. That's arbitration. In fact, it would be called "binding arbitration" because generally the kids can't appeal from the decision. However, if they had gone to a different parent, he or she might have asked some questions and discovered that one of the kids wants the icing and the other only wants the cake. They decide to scrape the icing off the cake for one kid and give the cake to the other. That's mediation.
In the most basic sense, mediation is a special form of negotiation – one in which you use a neutral third party to control emotions and help you negotiate a solution rather than trying to negotiate directly. The two kids in our cake story might have negotiated the same "arbitrated" result without help; but, as most parents know, it's more likely the cake would have ended up on the floor or one child would have felt cheated.
On a deeper level, mediation explores different methods of resolving the dispute. In most negotiations, the parties work from their outside positions ("I want the whole piece") toward the middle, almost insuring that the cake is simply divided roughly in half even if one kid wastes the icing and the other wastes the cake. In mediation, the parties take the time to discuss their interests and concerns, which leads to discussion of other possible solutions.
Dividing a cake normally won't have long-term consequences, but when two business partners or parents break up, the effects of simply splitting a company or the children’s custody or time can be disastrous. Because of the emotions involved and communication problems, it usually takes mediation to help parties discover the best solution.
No. "Collaborative divorce" is a form of negotiation that uses a "team" approach. Each party hires both a specialized attorney and a divorce "coach," then they hire a child specialist (such as a psychologist), financial specialist and other specialists as needed. The parties normally negotiate through their attorneys rather than use a mediator. If the parties are unable to negotiate a solution using this approach, the entire team withdraws, and the parties hire new attorneys. This approach may work for some couples, but can be somewhat expensive.
A mediator normally helps the parties discuss and resolve issues directly. If all or part of the mediation proves unsuccessful, the mediator remains available to provide future assistance and the parties are free to use the same attorneys, if they had hired any.
It's never too late or too early to mediate disputes. For example, mediation might be used in designing the original contract between two businesses or the operating agreement between business partners; or you can use mediation when the relationship sours, either to reformulate the business relationship or to dissolve it.
In marriages or other personal relationships, mediators can be used to negotiate prenuptial agreements, separation agreements when parties aren't ready for the actual divorce, divorce agreements, custody modifications, grandparents' rights, or even disputes over discipline and teenagers' driving privileges.
Generally, a mediator's hourly rate is about the same cost as hiring one attorney. Two parties usually agree to split the cost.