Mediation is a voluntary dispute resolution process in which the parties
and mediator meet together to work towards a resolution. The foundation
of mediation is that good communication about what is important to each party can lead to
successful
outcomes, often better than through processes such as litigation. A trained mediator
acts as an “honest broker” to help guide and facilitate the
conversation. The role of the mediator is not to tell the parties what to do,
but instead to facilitate and direct the conversation and to provide a structure
that is conducive to resolving the disputes. A mediator does not impose any decision
— instead, the settlement decision is made by the parties. Mediation frequently
results in parties reaching a voluntary agreement that they were unable to reach
on their own and can be very cost-effective. A good
mediator will have many tools to help the discussion be productive and to keep
it on track.
Mediation can be about nearly any subject. Commonly, people mediate
the issues in their divorce or separation, thereby reaching an agreement that
previously seemed elusive or unattainable. Other forms of mediation include
marital/relationship mediation — where people mediate issues
that arise in their primary relationship with the goal of reaching common
understandings and thereby sustaining and enhancing that
relationship. Businesses often mediate disputes with employees,
customers, and other businesses. Mediation is a way to help preserve a
relationship in spite of a disagreement, rather then end a
relationship due to escalating conflict. Mediation can work very well for many people, particularly where the parties do not feel they
need continuous involvement by their attorneys.
Mediation can be started at any time in the life of a dispute — in fact, as
a general rule, the sooner the better. What lawyers sometimes call “early mediation” allows mediation of immediate issues,
including on process issues on how to approach the steps needed
to reach final agreement. Delay in starting mediation until after taking steps
using formal legal procedures may be mistake from a dispute resolution
perspective, not only because of the added expense, but also because it delays laying the foundational pieces on which to build a better settlement.
The sooner the foundation can be laid, the better. There are some situations
where a delay in going to court can have repercussions, and it is best to get
advice to learn whether your situation falls into that category.
The structure of the mediation is provided by the mediator. Mediators use processes and methods that suit the personality and style of the
particular mediator, and will likely adapt the process to suit the particular dispute.
For example, the mediation process for a divorce mediation
will probably look very different from a mediation about a labor dispute between a union
and the employer, or a mediation between a community and its police department.
Similarly, a mediation conducted by a retired judge will likely look quite
different from a mediation conducted by a mental health therapist. In spite of
the differences, there are some common principles that apply to all mediations.
First, the mediator is a impartial party who does not and will not advise or
advocate for any party or parties. By rigorously maintaining impartiality, a
mediator is able to help both parties work towards resolution. Second, mediation
is voluntary. There is no requirement to engage in or continue in mediation.
Third, a mediation is private and confidential.
The mediation process can be broken into several phases that are commonly
followed. The first
phase is the establishment of ground rules. The ground rules are intended to
provide a common understanding of expectations to allow the mediation session(s)
to proceed productively. The second phase is intended to provide the mediator
with information about the dispute and the parties. The third phase involves
breaking the discussion/disputes into parts for discussion. Depending on the
mediator, this may be done formally — such as by preparing an agenda — or
informally, by either transparently discussing the next steps or simply
launching in, with the mediator then parsing the topics as may be needed. The
next phase includes discussing the topics. The nature of the dispute will
significantly impact the form that the discussion may take. The final phase will
be verifying any agreement that is reached, including reality-testing as to how
the agreement will work in the real world and placing the agreement in some form
of writing.
Not all mediators mediate the same way. There is a wide variety of styles and
techniques. Mediation styles can be broken out into a number of major
categories. In some respect, these categories are a bit artificial, because many
mediators combine more than one of these styles in their mediations. However, it
is still useful to categorize, because the differences may be important to you
as you consider the style of mediation that may work best for you. If one style of mediation does not seem to fit
you, another style of mediation might.
“Facilitative” mediation is a widely practiced form of mediation.
Facilitative mediation uses techniques to facilitate a discussion between the
parties with the goal that they will come to a resolution that is right for
them, independent of legal rights. Facilitative mediation is a process that
focuses on needs, interests, and goals of the parties instead of technical legal rights, and will almost always have
the parties together in the same room with the mediator. Facilitative mediation will often assist parties by having them work on communication and problem-solving
skills during the mediation session. Facilitative mediations (and most mediations other than settlement conferences) will primarily be face-to-face meetings, with
the parties and mediator in the same room.
“Transformative” mediation can look similar to a
facilitative mediation, and is designed to also help the parties reach a deeper resolution through insights about what motivates them and
others. Transformative mediation requires a developed and difficult to acquire skill-set by the mediator.
Perhaps for that reason, it is practiced by relatively few mediators. It is
perhaps most suitable for people who want to grow and learn lessons from their conflict
beyond reaching agreement.
“Narrative” mediation techniques may be used with both facilitative and transformative mediation. Narrative mediation focuses on modifying a story,
based perhaps on a sharing of information. Because narrative mediation techniques can resemble some forms of mental health therapy, narrative mediation is often
the preferred technique of mental health therapists. Narrative techniques may also
be employed by experienced non-therapist facilitative and transformative mediators.
“Evaluative Mediation” is a model often practiced by lawyers
or retired judges who conduct mediations that are modeled after litigation
experience. This is the style of mediation that is also used by most industry-specific mediators. This process looks
and feels quite different from the processes described above. In an evaluative mediation, the mediator
(or settlement conference master) evaluates
the legal and factual merits of the positions under either a legal framework or
an industry-practices framework, and shares his/her perspective of how the
matter should be resolved. The mediator/settlement conference master
will then typically try to forge agreement based on the settlement conference master's views.
This process is also frequently called a settlement conference. In an evaluative
mediation or settlement conference, the parties often sit in separate rooms, with the “settlement conference master”
traveling from room to room to convey perspectives and offers.
When talking with your lawyer about “mediation,” be sure to inquire what your attorney means.
It is surprising to many people that a large number of lawyers have no formal training in dispute
resolution beyond familiarity with laws and court procedures. Therefore, they
are generally not very familiar with various mediation models other than
evaluative mediations/settlement conferences. When lawyers talk about “mediation”, they will often be referring to a settlement conference, because that is the
model that many lawyers use to settle their cases. A settlement conference is essentially a
process that feels a lot like litigation, which is where most lawyers are comfortable
because of their education. At settlement conferences, lawyers generally
try to demonstrate how their evidence and legal theories are better than the other's, thereby
trying to sway the settlement master and the other side towards their position. Settlement conferences are
most useful in cases where the law is the most important consideration.
Settlement conferences are often undertaken only after preparing for litigation, because it can be difficult to make legal arguments,
show evidence, or make a convincing claim of what might happen in court without that type of preparation.
When considering the different mediation styles for your divorce, remember
that the purpose of the law is not to resolve private disputes. There are a
number of purposes for the law, including providing a somewhat predictable
outcome when a judge has to make decisions for someone else. Predictability is
important for several reasons, including maintaining the legitimacy of the
court. In a private dispute, most people are not concerned about the impact on
the next case, as a court would be. Most people in a dispute are interested most
in resolving their own dispute based on their own standards.
Unlike many lawyer-mediators, J. Mark Weiss uses a blended approach towards mediation,
and focuses more on the facilitative-transformative end of the spectrum.
Mark tries to remind both parties of the “big picture” — the impact of the dispute and of proposed solutions on the parties and others, to
help people arrive at a good solution. Mark works with the parties to discuss the information they
have on which to make decisions, helps with generating options for resolution
based on the information, and guides a discussion towards resolution. An evaluative approach may be
occasionally used in cases for which evaluation is best suited.
Mark may co-mediate a case with other mediators with specific skill sets for particular cases.
Co-mediation (two mediators in the same room) can add additional effectiveness.
Because of the importance to all parties that their mediator be impartial, Mark will ordinarily not mediate cases where he has been individually consulted with a party.
Like all dispute resolution processes, mediation is not the right process for everyone. While opinions may differ, we feel that most mediation styles are generally most suitable for parties
who have up to a moderate level of conflict. We feel that Collaborative Divorce (with skilled Collaborative Law practitioners) may
often be more suitable for parties
who have a higher level of conflict, because of the additional support that is
inherent in Collaborative Law cases. Similarly, a Collaborative Divorce may be more process than parties
need as their level of conflict becomes lower, and mediation may more suitable for those parties. Ultimately, however, the decision is very personal and based on
personal inclinations and preferences.
Mediation may not be appropriate if either or both parties are unable to tolerate sitting in the same room together, are unwilling or unable to consider the other
party's point of view, or are unwilling to freshly explore different options to see which one(s) might be best suitable.
Because the mediator is impartial (sometimes called a "professional neutral") and therefore cannot provide the parties with legal advice, it is important for mediating parties to have legal counsel who can provide that
advice. Commonly, mediated agreements will have legal repercussions, and it is important for the parties to understand those repercussions.
No one wants agreements to have unintended consequences. The Law Office of J. Mark Weiss, P.S., recommends that every party to a mediation consults with independent legal counsel
before finalizing any agreement. If parties do not have counsel and need a referral, we can provide the names of some independent attorneys with whom parties may wish
to consult to prepare for mediation and before signing any binding agreement. Parties are free to consult any attorney.
Generally, lawyers are not present or needed during mediation sessions (except for settlement conferences
— see above). Lawyers are welcome to attend mediations with prior
arrangement. Prior arrangement is needed to ensure that there is no surprise and that both parties have an equal opportunity to have counsel present during a mediation
session.
We provide mediation, generally face-to-face in the same room, for a wide array of family law and other disputes, including:
- Property and debt division;
- Spousal maintenance;
- Parenting plans;
- Child support;
- Domestic partnerships;
- Living-together arrangements;
- Prenuptial agreements;
- Marital and relationship mediation;
- Family mediation (family disputes);
- Partnership and business disputes;
- Inheritance disputes; and
- Most other types of disputes, whether between people or organizations.
Our office is designed to provide a comfortable, safe, and neutral place for people in which to have productive discussions about issues
that matter.
If you are interested in learning more about the divorce mediation
or other mediation
process, contact the Law Office of J. Mark Weiss, P.S., or inquire by
email to
info@mark-weiss.com.
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Mediation to
Resolve Divorce,
Separation, Relationship Issues