- What exactly is mediation anyway?
- What does the mediator do?
- What types of disputes can be mediated?
- What are the benefits of mediation?
- How does the mediator decide the outcome?
- What are the risks of mediation?
- How does the mediator resolve complex group issues?
- Is mediation confidential?
- How long does a mediation take?
- What is the difference between mediation and arbitration?
- What are the rules of the mediation process?
- How do I choose a mediator?
- Should my mediator be an attorney?
- Should I have an attorney?
- Should my attorney come with me to mediation?
- Can I bring a witness to the mediation?
- Do I need to bring my evidence to the mediation?
- What if I don't trust the other side or believe they will cooperate?
- What if I don't want to discuss everything in front of the other side?
- What if I am NOT going to change my mind?
- Is mediation an added expense? I was told it was a waste of time!
- What if my dispute involves violence?
- Who is present during the mediation?
- What happens if we can't reach an agreement?
- When should I consider seeking mediation as a resolution to my dispute?
What exactly is mediation anyway?
- Mediation is an informal process in which all of the parties involved in a dispute meet with a neutral third party (the mediator) and discuss what happened, and how they would like to see the situation resolved. All parties involved in the dispute need to agree to participate because mediation is a voluntary process. Some courts may mandate that parties attempt to mediate, but reaching an agreement is not mandated. Showing up and trying is all that is required to meet this mandate. Top
What does the mediator do?
- The mediator's role in the process changes as the process evolves, but it is basically that of a guide. Remember, the process belongs to the parties involved in the dispute, not to the mediator!
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- In the beginning, the mediator will assess the situation and determine if mediation is the appropriate venue for resolving the dispute. The mediator will create an arena for communication between the parties and invite all the parties involved to participate in the process. Prior to the mediation starting, he will negotiate the purpose, structure and guidelines of the mediation with the parties.
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- Once the mediation starts, the mediator's role is to help each party feel heard, identify and clarify key issues and the needs driving those issues, create an atmosphere of safety while managing (not restricting) emotions and communication, keep parties and process focused, identify and address unproductive power dynamics, encourage incremental and reciprocal risk taking, facilitate an effective negotiation process and deal with impasse.
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- During the problem-solving phase, the mediator should encourage creativity, assist parties to develop and discuss options with each other, help parties weigh their choices, articulate and solidify the discussion points of potential agreements, discuss implementation of solutions, draft agreements that have been made using the parties' own words and phrases to ensure that the agreement truly belongs to and remains with the parties of the dispute.
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- (The Dynamics of Conflict Resolution by Bernard Mayer) Top
What types of disputes can be mediated?
- Virtually any type of dispute can be mediated if the parties agree to participate voluntarily and work in good faith toward reaching a solution, agreement or settlement. Top
What are the benefits of mediation?
- Mediation allows the parties involved in the dispute to reach an agreement that both can live with. There is no judge or jury to tell you, whether you like it or not, what you have to do. This empowerment generally results in greater satisfaction of the parties and increases the probability that the agreement that is reached will be a lasting one.
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- In situations where continued interaction by the parties after the dispute is likely or necessary, the mediation process' foundation of communication and empowerment enables most parties to move past the dispute and maintain a satisfactory relationship thus reducing the likeliness that future disputes will develop. Many parties invovled in mediation have described it as a transformative process that has repaired and even improved their relationships!
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- Mediation introduces a structured process to the conflict, making it easier for parties to communicate without having to worry about outside influences, being attacked or having what they say used against them.
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- Mediation saves time compared to litigation. In many cases, it takes much longer to resolve disputes and conflict through the court system than it does through mediation. The system is overloaded and dockets are so backlogged that it can take months to get a court date. During all that waiting time, disputes often continue to grow and worsen. Mediation can resolver the dispute before it gets out of control and save all the parties involved precious time.
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- Mediation saves money compared to litigation. In many cases, mediation can resolve disputes before it is even necessary to retain legal counsel. Even once legal counsel is retained, mediation is still more cost effective than litigation because attorney fees will be much less if the dispute can be resolved quickly compared with dragging it out over months in the court system. Top
How does the mediator decide the outcome?
- Actually, the mediator doesn't make that decision. Remember, the process belongs to the parties involved in the dispute. The mediator is not a judge or jury, but a guide that facilitates the process. Therefore, the outcome is decided by the parties and it is up to them how that outcome is reached and what it looks like. Top
What are the risks of mediation?
- Mediation is a voluntary process. Both parties must agree to participate and both parties can stop the process at any time, therefore the risks are very low. No parties involved in the process will be forced or coerced by anyone else, including the mediator, to accept any agreement or solution they don't support or agree with. Top
How does the mediator resolve complex group issues?
- Mediators use many tools and methods when working with larger groups that are involved in disputes. Often there are many facets and underlying needs that must be met when working with groups in conflict. A full and complete assessment of the situation is crucial to a successful outcome and the mediator will normally spend a considerable amount of time, both before and during the mediation, attempting to uncover and address each of these needs. Mediating larger groups may mean starting with smaller meetings with smaller groups within the overall larger group. However, each dispute is very different, so how the mediation is approached will depend on what is assessed of the situation by the mediator. Some issues that are often involved in complex group disputes are facilities, organizational structure, managerial hierarchies, clarity of group or organizational missions, other structural issues within a group or organization and organization or group culture. Top
Is mediation confidential?
- The mediation process is a completely confidential process. The mediator is ethically obligated not to disclose any of the details of the mediation to parties not involved in the mediation. The only exception to the mediator's obligation is when situations arise where there is evidence of elder or child abuse or where there is evidence or a threat of ongoing or implied violence or terroristic threats. As such, mediators can not be subpoenaed to testifly in court as to the details of a mediation or regarding the outcome of a mediation. If the situation dictates that a supervisor or employer or judge (as in the case of court-mandated mediations) must know the outcome of the mediation, the mediator will work with all the parties involved to ensure that no confidential information that was disclosed during the mediation will be divulged. The only information that should be submitted to the courts is what is written on the mediated settlement agreement or resolution document. The confidential nature of the mediation process is continuous in nature. It does not terminate upon the conclusion of the mediation.
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- See, e.g., §§154.053, and 154.073, Texas Civil Practice and Remedies Code. Top
How long does a mediation take?
- There is no hard-set determining factor as to how long a mediation will take. Various things such as the complexity of the issues, the number of parties involved and whether or not additional time is needed to gather more information prior to a settlement being reached all contribute to the length of the mediation. Generally, mediations are scheduled in half-day blocks of time unless it is apparent from the outset that a mediation will required at least a full day's worth of time. Most of the time, the mediator will be able to provide an estimate of the amount of time a mediation will take once he's had the opportunity to properly assess the dispute. Top
What is the difference between mediation and arbitration?
- Mediation is a voluntary alternative dispute resolution process. Everyone involved in the mediation must consent to being there and participating in good faith toward finding lasting resolution to the dispute. In mediation, the parties are not bound to finding a resolution and, if a resolution is reached, it is not binding on the parties unless they choose to draft a mediated settlement agreement. Solutions or settlements reached in the mediation process are not "decided" by any party other than the parties that were originally involved in the dispute. If the mediation process is an evaluative process, the mediator may assist parties in realizing and understanding the strengths and weakness of their positions and assist them in gauging the likelihood of their success should they determine that litigation or arbitration is the desired route. However, the final decision is still that of the parties involved and not the mediator's.
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- In arbitration, however, a neutral third party (the arbitrator) hears both sides of the dispute and renders a final decision in favor of one party or the other. Arbitration decisions may be binding or non-binding depending on the terms of the arbitration agreement. Binding arbitration rulings are oftern reported to, and confirmed by, the court and are just as significant as a court judgment.
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- American Mediation Services will perform arbitrations for very specific circumstances. If you feel that the facts of your dispute would be better suited to arbitration, please contact us and we will provide you with a list of highly qualifed arbitrators for you to choose from. Top
What are the rules of the mediation process?
How do I choose a mediator?
- Choosing a mediator can be the single most important decision you make in finding lasting resolution to your dispute. Ask friends if they have had a good experience with a mediator or, if you have already retained counsel, ask your attorney. You can also search the internet or yellow pages. When you prepare to select a mediator, consider his or her level of experience, amount of dispute resolution training and level of expertise regarding the specifics of your dispute. For example, a mediator that specializes in tax-related issues might not be the best choice to mediate a family dispute or divorce case. Likewise, a mediator that specializes in family issues might not be the best choice to mediate a workplace dispute. Most important is that you should do your own research. Never summarily reject or accept a mediator just because they were suggested by the other party. Top
Should my mediator be an attorney?
- It is not necessary for your mediator to be an attorney. Mediators come from many different walks of life. For example, a mediator that has a background in collections or debt management may be more knowledgeable about the intricacies of a collections or debt settlement case than a mediator that is an attorney. However, a mediator that is an attorney may be more aware of a specific legal aspect of your case that a mediator that is not an attorney would not otherwise reckognize. An attorney-mediator might be very knowledgeable about the legal process and documents involved in a divorce, but a mediator with a background in family counseling might be much better suited to helping you work through the emotional and personal ssues that might arise in the process of dealing with your divorce and the custody of your children. It really boils down to what you want to accomplish in the mediation. Whether or not the mediator is an attorney in no way guarantees the durability of the settlement reached in a mediation or even if a settlement will be reached to begin with. Top
Should I have an attorney?
- Although the mediation process allows for the parties involved to make their own decisions, you should consider having an attorney to represent you. Attorneys will counsel you on the legal aspects of your dispute and will champion your position, even in a mediation. While you may be the one making the decisions in a mediation, your attorney can help you make informed decisions. Finaly, whether or not you truly need an attorney rests on the merits of your dispute and how much is at stake both monetarily and otherwise. Top
Should my attorney come with me to mediation?
- Attorneys are always welcome in the mediation process, but not always necessary. However, if you feel more secure or safer having legal counsel present, by all means bring them with you. Just remember that your attorney will be charging you for the time he or she is present at the mediation. Another consideration is to ask your attorney if he or she is willing to be available by phone should you need to contact them regarding a specific legal question that arises during the mediation. Most divorce attorneys prefer to be present during the mediation process. Top
Can I bring a witness to the mediation?
- Remember that mediations are not evidentiary proceedings and that the mediator will not be making any determinations regarding the case whether you present a witness or not. When considering bringing an additional party into the process, remember that all parties must agree to the presence of individuals that aren't directly involved in the dispute. Additionally, if you do bring a witness, the mediator may not allow the witness to speak during the joint session, but may allow the witnesses inpute during caucus or when the parties are separated and private conversation can take place. Top
Do I need to bring my evidence to the mediation?
- As stated above, mediations are not evidentiary proceedings. To that effect, evidence is not required at a mediation. However, the more documentation and proof that you have to bolster your position may directly effect the outcome or settlement of the mediation process. Sometimes, having documentation for the other party to see may help him or her to see your position from a different aspect or may make them more willing to settle depending on the strength or weakness of their position and whether or not what you present affects that position. Top
What if I don't trust the other side or believe they will cooperate?
- Remember that all parties that agree to mediate must do so in good faith. Additionally, a resoution that is reached between the parties and is mutually agreed upon is much more likely to be lasting in the long run. Mediation, by its very nature, is a process that encourages parties to begin trusting one another. That trust begins with believing that the other party is attending the mediation with the desire to find resolution and peace resolving your dispute. Top
What if I don't want to discuss everything in front of the other side?
- You are not required to do so! The mediation process generally takes two forms: joint session and private caucus. Only discuss in front of the other party what you feel comfortable doing so! During the private caucus, you may discuss your position more freely with the mediator and the parties in the room. The mediator may ask you if he can disclose certain portions of your private discussion with the other party, but you are free to decline or deny that disclosure or to specify what can and can not be disclosed. Top
What if I am NOT going to change my mind?
- You are not required to do so! However, attending the mediation gives you the opportunity to express yourself to the other party in a safe and non-threatening environment and to hear what the other party has to say. The best way to find resolution is through clear and open communication and that is what the mediation process attempts to enable you to do! Top
Is mediation an added expense? I was told it was a waste of time!
- Depending on your particular situation, mediation may or may not be an added expense. More times that not, mediation will actually save you money versus having to obtain attorneys to argue your side before a judge or jury. Even if you have an attorney, there are many steps that the attorney must take prior to litigation. Mediating your case early will avoid all that added time for your attorney and all those attorneys fees that are associated with the preparation of your case for litigation. Top
What if my dispute involves violence?
- Some court cases involving violence are sent to mediation. If this is your situation, then be sure the mediator knows in advance so proper preparations can be made. The mediator can ensure that you are in a safe environment during the mediation such as arranging arrival times so that you and the other party don't have a pre-mediation encounter, mediating the entire process in caucus so you don't have to come face to face with the other party or even setting up the mediation to be conducted with both parties at remote sites so there is no chance of further violence or intimidation by or from either of the parties involved. If your case if a divorce case where there is a history of violence, be sure your mediator is aware and has made the proper arrangements to ensure your and the other party's safety. Top
Who is present during the mediation?
- One of the wonderful things about medaition is that the process is truly flexible. A party is free to have consultants, accountants or whomever else they feel they need for the mediation to convene. For a mediation to be successful, the parties that have the authority to make final and lasting decisions regarding the dispute MUST BE PRESENT. Please understand that, excluding the attorneys and other professionals necessary for the mediation to take place, both parties must agree to the presence of other indviduals in the process. Furthermore, the mediator may deny any parties other than you or your attorney and consultants to speak during joint session if that is a stipulation of their being allowed to be present during the process. Top
What happens if we can't reach an agreement?
- Nothing says you have to reach an agreement. If you fail to reach an agreement during the mediation process, you may determine that you want to set another date for further mediation or that litigation is going to be the only option for finally reaching a decision regarding your dispute.
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- Another possibility is to switch gears, so to speak, and move from the mediation process into binding arbitration. This may or may not be possible depending on your mediator and where you're mediating. Some mediators will not act in the capacity of an arbitrator and some mediation practices do not have arbitrators standing by to settle a dispute. However, if availabe, this is a perfectly viable and acceptable alternative to continuing to litigation should you be unable to reach a mutually satisfactory settlement agreement during the mediation process. Top
When should I consider seeking mediation as a resolution to my dispute?
- The good news is that it's never too late to mediate a conflict! When you actually decide to mediate, however, depends on many different factors. As a general rule, the earlier you can mediate a dispute, the better, because there is less of a chance that the dispute will end up permanently damaging your relationship or leading to litigation. However, early mediation is not a 100 percent perfect answer every time! There may be extenuating circumstances such as documentation from experts or other crucial information that you must have in order to make an informed decision regarding the dispute. In theses cases, it's best to wait until all the necessary information has been gathered. Many attorneys like to wait until after the discovery phase of pre-litigation preparation before making a consideration to mediate because that's when all the evidence in the case is revealed and both parties can better determine how their positions will stand up in court should it be necessary to carry the dispute through to litigation. The answer boils down to this: The best time to mediate is when all the parties agree that they are ready to work, in good faith, toward reaching a settlement of the matter. Top
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