Definition: MEDIATION: a voluntary informal process wherein the parties meet with a mutually selected impartial and neutral person who assists them in the negotiation of their differences and interests. Mediation empowers parties to make their own decisions and develop mutually sustainable outcomes, agreements and resolutions.
Strengthes: Parties have full authority to mediate and settle. They are in mediation voluntarily. Parties expect to meet under confidential circumstances. Confidentiality is not guaranteed in every state and situation. Know your state’s Mediation guidelines. Rule 31 of the Tennessee Supreme Court Statute addresses confidentiality. Typically, Mediators are not called to testify in open court.
Unlike court (litigation), there is nothing to prove and no evidence to review. Attorneys trained in mediation know and understand that their role is as an advisor to their client and less as an adversary to the other party.
MEDIATION TYPICAL PHASES
A Mediator is mutually selected by parties. Attorneys are often familiar with specific Mediators and the Mediation style they tend to apply. Attorneys often recommend several trained Mediators to clients to review and consider. Mediators come from various backgrounds and domain spaces. Some Attorneys have formal training in Mediation. When choosing a Mediator, consider their professional background and expertise and ask what their dominant mediation style is (facilitative, transformative, narrative, evaluative). Ask yourself which style is a good fit for your negotiation.
For clients relying on Attorneys, Mediators usually speak with Attorneys and then clients individually (phone call; Zoom; something else?). Attorneys sometimes attend these initial meetings.
All Parties and the Mediator(s) sign an agreement to meet.
Based on the information shared, Mediators work with parties and attorneys to design the meeting for optimal comfort and reduced stress. Meeting styles include Joint (all parties in same room) and Caucus (parties separated with Mediator moving back and forth). In Joint format, parties usually break into Caucus to discuss information with Mediators. Everyone gets their time to talk and share. Mediations rely on flexibility to best capture the momentums gleaned in sessions.
2. Mediation Day
Mediator begins with process review, agenda and ground rules.
Optional opening statements (welcomed but no requirement for Lawyer statement)
*Breaks can come anytime during sessions. Anyone can call for a break. When sessions resume, Mediators summarize which stage of mediation parties are in and restate agreements and issues on the table.
Information gathering- Facts may be reviewed or not, depending on the reason for mediation. What is really going is a collaborative discussion on positions and interests. This is the space where Parties should be mindful and receptive to what the other side is sharing. As this is a collaborative effort, Parties often see new value in pivoting their own positions to get better outcomes for both Parties.
Take a Break when you feel like you need to take a break.
Bargaining with an open mind from a creative space. This can be difficult for some people. What-if scenarios are designed to float concepts and possible approaches to sustainable solutions and agreements. Parties must able to speak to their interest and not just their position.
*The mediation process isn’t tied to a linear pathway. Parties often flow back and forth from creative talks to bargaining and even into possible developmental solutions. Throughout this process Parties are encouraged to keep ears open and actively listen to issues floating around the discussion.
Shakespeare said that all the world is a stage and we are merely players. Attorneys and Mediators are on this Mediation stage all the time. They have seen many outcomes. About 85% of mediations reach a sustainable resolution. For most Parties, the Mediation experience is entirely new. If not, previous Mediations they may have been a part of may lower some stress regarding the process. But with different mediators and different reasons for their current mediation Parties can often get stuck in stalled negotiation. When you realize that you are at an impasse it is the time to try to step away and outside of the role you are playing in Shakespeare’s Mediation stage and view the current situation from a different position. Sometimes, taking a break and by returning and sitting in a different chair can reveal entirely new ideas and considerations. It can be that simple. In court you will either sit quietly next to your Attorney, sit on the stand or be told to sit outside until you are called back. Mediation works when Parties sit where they want and talk about what they want and through their own efforts move issues forward. Mediating Parties are encouraged to ask questions.
Completion: this may result in an agreement/settlement, an additional session
*Not all mediations are held with the intent of developing a Settlement/Agreement.
*Settlement/Agreements come from the Parties. They must be realistic, freely given, sustainable. For these requirements to be met, Parties can invest significant time clarifying their own interests to themselves.
Mediation is a voluntary, confidential informal approach used to address conflicts, negotiations, business deals and stalled conversations. For thousands of years, mediators with different backgrounds have used different mediation styles (evaluative, facilitative, transformative, narrative) to help people sort out business deals, troubled relationships, potential lawsuits, and other conflicts and disagreements.
What is a Mediator? A Mediator is a neutral party who does not give legal advice and does not “represent” any party. Mediators apply the Mediation process to a negotiation. A mediator does not go to court and argue for or against any party. One role the Lawyers hold is to be (on retainer) and duty bound to represent only one party, In Mediation, Hero Lawyers have completed formal Mediation training. Mediation-trained Lawyers can serve as Mediators between parties they do not represent. Mediators are intended to be omnipartial- empathetically supporting independent decisions of all a parties in a negotiation. Your Lawyer will advise you on the merits of your case, the strengths and weaknesses of your case, and will address strategies for litigation, mediation, arbitration, settlement conference and probably some other considerations altogether.
Does a Mediator have to be Lawyer? No. Practical history highlights Lawyers trained in Mediation and serving in roles as Mediators are more than capable of remaining neutral and omnipartial to all parties in a negotiation. While parties in conflict do not necessarily have to have an attorney as their private counsel, it is common for parties to have their own attorney advising them during Mediation. Is your Lawyer formally trained in Mediation? And while some Attorneys may not necessarily be trained in mediation, they may bring an immense experience load and expertise that is invaluable to a Party.
Legal advice needed in an active mediation session must be given by your own Lawyer. Mediators who are Attorneys are not ethically allowed to give participants legal advice. Non-Attorney Mediators draw from their unique knowledge, domain expertise, skills, abilities and other experiences. Choosing to attend a Mediation session alone is your option. I would encourage Parties to at least consult an Attorney before and after the Mediation sessions. In Mediation, Attorneys are the usually the heroes of the session. They are there to provide legal advice you cannot get from Google or some other source.
Narrative Mediation: Relatively new and stemming from family therapy and counseling efforts, Narrative mediation promotes the value in storytelling from the perspective of each party. Think of the triangle relationship of the dragon, knight and princess. People in conflict often speak of their situation form the eyes of the princess in distress. Mediators prepare environments and set conditions so that all parties may express themselves in order to share what they experienced as well as promote dialogue where people try to appreciate the contextual experience of other parties. An agreement or resolution may or may not be an end result of this type of mediation.
WHAT A MEDIATION ISN’T
Mediation is not Litigation (court). Mediator are not Judges. Mediators do not make decisions or impose a solutions.
Mediation is not Arbitration. Mediators do not decide cases or impose solutions.
Mediation is not counseling and does not provide therapy. The mediation process can touch on past issues but is focused to move parties forward toward improved understanding and possibility an agreement or solution.
Mediators do not provide legal advice to an individual party or both parties. A Mediator is not one attorney for two people. If a Mediator happens to be an attorney, the Mediator role prohibits them from providing legal advice.
HOW DOES MEDIATION WORK?
Mediation sessions set informal conditions so each party can summarize their point of view, positions and more importantly, their interests. Parties can bring their attorneys or not. There is great flexibility in setting mediation meetings. All parties can meet together or Mediators can shuttle (caucus) between different rooms with parties (and as applicable, attorneys). Caucus formats all parties to share confidential information and vent away from the other parties. Agreements are usually put into writing and signed by the people involved (and of course, built with the advice of their attorneys if they choose). The language in a mediated resolution agreement is crafted by the parties (with attorney input as they desire). Mediators do not develop, author or construct settlement agreements. Settlement agreement statements typically showcase one of three mediation sessions outcomes. A mediation may be terminated with no agreement or settlement. An agreement may be reached with contingencies. An agreement may be reached with all parties in support. The mediation agreement/settlement document is the only document that is considered durable ( eligible for filing with a court, and all parties leave with a hard copy of the agreement/settlement. Parties have open options regarding resuming mediation for a stalled session or returning to mediation for new negotiations at a later date.
Mediation Meeting Duration
Here again, the informality of mediation is a great strength. Some conflicts, disputes, and impasses can be sorted in just a few hours. More complex concerns may require several sessions. either over days or weeks. The most important point of every mediation is that the mediation is a place of empowerment for all parties. The Mediator promotes the mediation process. Attorneys advise their clients. Parties have the main speaking roles and full decision authority.
WHO PAYS FOR THE MEDIATION?
The cost of mediation is shared equally by the persons involved unless they agree otherwise. You should know in advance what the mediator charges and when payment is expected. Payment for mediation sessions are typically sorted before a session initiates.
WHAT TYPES OF DISPUTES CAN BE MEDIATED?
WHAT ARE THE BENEFITS OF MEDIATION?
PARENTS GUIDE TO MEDIATION
Parents filing for divorce must submit a parenting plan. Mediation brings an immense power and efficiency to parenting plan development and stalled divorce negotiations.
Attorneys are the Heroes in divorce mediation. Because Mediation is a process that falls outside of the courts, attorneys do not have to gather evidence and prove the facts of divorcing couples in an adversarial way. In Mediation, there is not fight against the other side. It is a collaboration to move forward through a divorce transition in a way that sets desired outcomes for the divorcing adults and the parent’s best negotiated conditions for their children.
LAWYERS GUIDE TO MEDIATION
The Hero role of the attorney in mediation is a one of a counselor to their party over their court role of arguing facts and issues to a judge or jury. Effective mediation-oriented Attorneys bolster their clients abilities to speak to their positions and interests. In mediated divorces the intent is to move forward.