The Mediation Process

Mediation can be voluntary or court–ordered. The mediation process begins with the assumption that the parties are willing to discuss and resolve 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, helps to defuse the parties’ emotions and provides an honest look at the consequences of the options that are available.

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. Mediation allows for closure and civility while preserving integrity and self esteem.

Elder law disputes also involve ongoing relationships where mutually satisfied parties are vital for comfortable ongoing 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 conclude or settle within 30 days of starting the process; it is informal, flexible; and effective. Mediation statistically 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 vital 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, that the mediator is an impartial facilitator without authority to impose a solution, and that communications made during mediation are confidential. A mediator will be neutral and parties’ should 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, 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 without immediate resolution.

If an agreement is reached on any issue, the agreement must be put in writing, signed by the parties and their attorneys, and submitted to the Court unless the parties agree otherwise.

The mediator must maintain confidentiality of all information revealed during mediation except where disclosure is required by law. All oral or written communications in mediation are confidential and inadmissible as evidence in any subsequent legal proceeding, unless both parties agree otherwise. This rule encourages people to talk openly and honestly, without fear of reprisal. Parties split the cost of the mediator and payment is required in full at the end of each session. Be prepared with a check, money order, credit card, or cash.