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

1. Pre-Mediation

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.

GENERAL INFORMATION

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.

MEDIATION STYLES

Mediator Styles

Evaluative Mediation:  It has been highlighted that this form relies on evaluative mediators weighing in on options and offiering suggestions based on their experience.  Attorney Zena Zemuta shared that this form evolved from settlement conferences held by judges.   The process design for this style often includes separating parties with the mediator shuttling back and forth with information.  Zemuta notes the assumption that because this style is often promoted by the courts, mediators with legal domain knowledge and experience with settlement conferences tend to be lawyers and judges.

Transformative Mediation: This style helps promote conversation and the improved understanding of all parties involved.  Settlement and agreements are optional outcomes in many cases.  This approach is often used in Marital Mediation.  Spouses who are mediating in order to better understand their own positions and interests while also learning more about their spouse’s positions and interests.  In Elder Mediation, the transformative mediation style can open pathways to receptive communication about difficult topics (end of life care, advance directives, living wills, trusts, etc.).  Process design for this style often includes one-on-one party/mediator sessions followed with a joint session involving all parties.  Parties are encouraged to have their own attorney present.  The transformative approach is about empowerment and all parties being heard and understood. 

Facilitative Mediation:  Thought to be the most familiar approach, facilitative mediators adapt to meet shifting needs and conditions in mediation.  Thoughtful use of calibrated questions while clarifying positions and interests can assist all parties in improving their understanding of a conflict, deal, situation, legal issue or future approach to issues yet to be experienced.    

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?

• Marital Mediation (conflict coaching and impasse management)
• Landlord and Tenant
• Neighbor and Community
• Business
• Consumer
• Employer and Employee
• Divorce and Family
• Juvenile
• Negligence
• Products Liability
• Construction
• Contracts
• Personal and Real Property
• Environmental
• Other Civil Matters

WHAT ARE THE BENEFITS OF MEDIATION?

• Mediation is voluntary and unlike court, can be conducted quickly and privately.
• Parties maintain full control of their decision making authority.
• Mediation can take place before a lawsuit has been filed. The mediation process is not a court process. It can happen fast.
• Mediation is a collaborative process whereas litigation is an adversarial process.
• Mediation can repair relationships.
• Mediation unlike court cases, is a voluntary process and not part of the public record.
• Mediation usually costs significantly less in terms of fees, are far more agile than court timelines and exponentially reduces stress to all parties. Court outcomes always have a winner and a loser. Mediation offers a pathway to a better understanding of the other side’s positions and interests and may result in a sustainable agreement for all parties. Parties can pivot to litigation and terminate mediation anytime their chose.
• Mediation can simply used to assist stalled negotiations that are not even in the courts.

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.

Mediation:

• Relies on parents communicating directly with one another with the assistance of a trained Mediator.
• helps parents clarify their interests outside of their emotions, creates ways to bridge gaps in expectations.
• is collaborative.

The Mediator:

• is omnipartial in the they remain neutral and promote the mediation process.
• do not give legal advice and do not serve as a judge.
• sets conditions that promote the sharing of positions and interests in ways that work to have heavy topics land more softly on all parties.

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.

• Attorneys know the legal aspects of divorce and other civil areas and they advise their clients. They are subject matter experts in reviewing agreements before signing contracts.
• The Litigation model seeking rights-based outcomes takes a long time. They can advocate for you over the months and years many cases require. Churning through the discovery phase of information reviews and taking depositions and generating memoranda and booking time in the courts is a slow going process. An Attorney trained in Mediation and Litigation will probe to find out which approach is likely to get the outcome a client is seeking. Either way, they are your hero. Mediators see pro-mediation Attorneys as heroes because when Parties can mediate, their Lawyers have supported their clients through an informal process that is usually quicker, has less stress and a lower cost to their client. Locking in enhanced trust and more legal services for them.

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