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The Mediation Process

The mediation process begins with the assumption that both parties are willing to discuss and resolve the issues. By exploring the strengths and weaknesses of each party’s position and acting as an intermediary, the mediator provides an objective point of view and helps to defuse the parties’ emotions. An experienced mediator helps the parties take a good look at the long term consequences of the conflict, and explore alternative resolutions.

Mediation is the least expensive and least adversarial method for resolving all kinds of conflict. With mediation, the decision making authority rests with the parties, not lawyers or judges. It works especially well with family issues as often relationships remain strained after a divorce. Mediation allows for closure and civility while preserving integrity and self esteem. Construction, workplace and employment disputes also involve ongoing relationships where mutually satisfied parties are vital for continued  contact.

The mediator provides a level playing field so parties can feel comfortable and in control. Mediation generally costs significantly less than litigation; it is efficient as most  can conclude  or settle within 30 days of starting the process; it is informal, flexible; and effective. Statistically, mediation settles over 85% of initiated disputes. A signed mediation settlement is as enforceable as any other contractual agreement. If, however, mediation does not result in a signed settlement, the right to pursue legal remedies remains.

It is widely recognized that a good mediator usually only needs to have a general knowledge of the topic that is being mediated. However, experience or knowledge of the subject matter is often helpful  to a successful resolution of the issues. In most mediations, both parties are involved in the selection of the mediator unless there is a designated provider of service or mediator specified in the contract or appointed by a judge.

When mediation begins, the mediator will describe the process and the role of the mediator. Parties will be advised that mediation is a consensual process and that the mediator is an impartial facilitator without authority to impose a solution, and communications made during mediation are confidential. Both parties look at the mediator as neutral and extend personal and confidential information to the mediator in private discussions that are commonly known as caucuses.

The mediator is permitted to meet and speak privately with any participant and his or her attorney. This usually happens when the mediator or an attorney or participant thinks it will help move the discussion toward a solution. When appropriate, the mediator can be authorized to transmit settlement offers to the other party with the ultimate goal of reaching a final settlement, whether partial or in full. Information obtained during caucus may not be revealed by the mediator to any other mediation participant without the express consent of the disclosing party or their attorney.

If the mediation is court ordered, and a party fails to appear without good cause at a mediation conference for which he or she had notice, the Court may award mediator and attorney fees and other costs against the participant who failed to appear.

In court ordered mediation, if no agreement is reached, the mediator will report the lack of agreement to the Court without comment or recommendation. It will be reported as an impasse or without resolution.

if the mediation is Court ordered, and an agreement is reached on any issue, the agreement must be put in writing, signed by the parties and their attorneys, if any and if present, and submitted to the Court unless the parties agree otherwise. In non-court ordered mediation, the agreement remains confidential unless the parties agree otherwise.

Confidentiality

The mediator must maintain confidentiality of all information revealed during mediation except where disclosure is required by law. There are state mandated  exceptions, such as child, elder or disabled person abuse.  All  other oral or written communications in mediation are confidential and inadmissible as evidence in any subsequent legal proceeding, unless all parties agree otherwise. The reason for the rule is to encourage people to talk openly and honestly, without fear of reprisal. If subpoenaed to testify about the mediation, the mediator can claim privilege and refuse to testify or disclose any information.

Parties split the cost of the mediator and payment is required in full at the end of each session. the parties need to be prepared to pay for each mediation session at the time of the session.