FREQUENTLY ASKED QUESTIONS

Different mediators use different processes to conduct a mediation. A typical mediation may include the following components, whether in person, via telephone or web conference, or by email.

Initial Interview
The mediator or other staff member may conduct an initial interview with each party. This is done to get a clearer picture of what issues are to be resolved and the general positions each party is taking on an issue prior to meeting together.

Scheduling
You may have a brief scheduling conference where all parties are present to coordinate their schedules for the first meeting or set of meetings.

Initial Meetings
Depending the mediator’s preferences and style, your initial meeting may be an individual coaching session to help prepare you for a joint session with the other party. Other mediators prefer to meet with all parties at once for the first session. This can also depend upon the nature and complexity of your case.

Mediation Sessions
Your mediation may take place over one or multiple sessions. The mediation sessions may include the following components, or may follow a less formal format:

• Setting ground rules: The mediator will work with the parties to set rules of engagement to help make the best use of your time and maintain a collaborative environment.
• Opening statements: Each party may have an opportunity to summarize what they understand to be the issues and what their hopes are for a mediated solution.
• Response and Elaboration: Parties may have an opportunity to respond to opening statements and elaborate in more detail on why they are taking their particular position.
• Clarifying the issues: The mediator may summarize their understanding of the issues to be addressed and the existing proposals for solutions. Parties will have an opportunity to clarify any misunderstandings, or ask questions of one another to be sure they understand each other’s positions.
• Exploring solutions: The mediator may facilitate a discussion to explore possible options consisting of those that have been proposed as well as new ideas generated by discussion. With the help of the mediator, parties may evaluate all possible solutions to find one or more that best meet the desires of all parties.
• Reaching agreement: Once ideas have been narrowed down, the mediator will facilitate discussion on how to create an effective agreement containing the solutions chosen by the parties.

The length of the mediation depends upon the complexity and nature of the dispute, the number of parties involved, the willingness of parties to engage in the collaborative process, the ease of the parties' communication, and the flexibility of parties’ schedules. Some cases may take just three hours to complete. Others may take several sessions over a period of weeks or months. Your mediator may give you an estimate of how long this may take upon completion of all initial interviews.

Studies have consistently shown that parties who involved in a lawsuit are not satisfied with the process or the outcome, regardless of whether they “win” or “lose.” Individuals who chose mediation are often more satisfied with both the process and the results for a number of reasons:

• Mediation gives the parties more control over the outcome. You decide together what solutions work best for you, not the judge. You may still need the approval of a judge, but your mediator can help you draft an agreement that avoids terms that would be concerning to a judge.
• Parties may be more inclined to comply with agreements, as opposed to judicial orders, because they participated in creating the agreement and maintained control over the outcome. Many litigated decisions end up back in court because of an appeal, failure by one party to follow through, or new issues that arise that could have been anticipated in a mediated agreement.
• Parties in mediation experience less relational strain because the element of a “winner” and a “loser” has been removed from the process. In cases where the parties will have an ongoing relationship, such as family and workplace matters, mediation can help parties learn to communicate more effectively to avoid trouble down the road.
• The collaborative process usually takes less time because the parties are working together and do not have to adhere to a court-prescribed timeline. Litigation involves each party “digging their heels in” which naturally results in a longer process with more negative impact on the relationship.
• Because mediation can take less time than litigation, and parties typically share the cost of one mediator (versus two or more litigating attorneys), the cost of mediation can be considerably lower than that of litigation.

When taking your case before a judge or arbitrator, you present your positions to them, and agree to comply with the decision they make after they hear your case.

A mediator works with the parties to help them identify the underlying issues and what is really important to them in their case. You are encouraged to talk with each other when possible to find solutions that address your concerns and that will avoid problems in the future. The mediator will not tell you what to, but will support the parties to make a decision that is acceptable to them.

If your mediator is an attorney, they will not offer legal advice. They may supply legal information to all parties, and ask questions to help you understand how a judge might view your agreement. As a mediator, they will remain neutral in that they will not promote one party’s interests over those of the other.

A unique benefit of mediation is that all information shared in mediation is confidential. If your case goes before a judge the only information presented will be signed agreements made in mediation.

Because mediation is a confidential settlement discussion, information learned in mediation that is not contained within an agreement signed by all parties is generally not admissible in court.

Each mediator will have their own policy regarding additional parties present in mediation. It’s important to discuss this prior to your mediation. Attorneys can be beneficial in helping you frame your position and navigate difficult decisions. Parties may also request to have a family member, counselor, or other support person present. Communication between parties and their attorneys or support may be conducted in caucus (a private meeting outside the mediation room).

Each mediator has his/her own unique style of helping parties to reach an agreement. Three of the most prominent styles are detailed below (taken significantly from an article by mediator Zena Zumeta.) Many mediators use techniques from a variety of styles depending on their experience, training, area of expertise, and the needs of the parties in each particular case.

Facilitative Mediation

In facilitative mediation, the mediator structures a process to assist the parties in reaching a mutually agreeable resolution. The mediator asks questions; validates and normalizes parties' points of view; searches for interests underneath the positions taken by parties; and assists the parties in finding and analyzing options for resolution. The facilitative mediator does not make recommendations to the parties, give his or her own advice or opinion as to the outcome of the case, or predict what a court would do in the case. The mediator is in charge of the process, while the parties are in charge of the outcome.

Facilitative mediators want to ensure that parties come to agreements based on information and understanding. They predominantly hold joint sessions with all parties present so that the parties can hear each other's points of view, but may also hold caucuses (sessions in which the parties are separated from each other).

Evaluative Mediation

An evaluative mediator assists the parties in reaching resolution by pointing out the weaknesses of their cases, and predicting what a judge or jury would be likely to do. An evaluative mediator might make formal or informal recommendations to the parties as to the outcome of the issues. Evaluative mediators are concerned primarily with the legal rights of the parties rather than their underlying needs and interests, and evaluate based on legal concepts of fairness. Evaluative mediators meet most often in separate meetings with the parties and their attorneys, practicing “shuttle diplomacy”. They help the parties and attorneys evaluate their legal position and the costs vs. the benefits of pursuing a legal resolution rather than settling in mediation. The evaluative mediator structures the process, and directly influences the outcome of mediation.

Transformative Mediation

Transformative mediation is based on the values of "empowerment" of each of the parties as much as possible, and "recognition" by each of the parties of the other parties' needs, interests, values and points of view. The potential for transformative mediation is that any or all parties or their relationships may be transformed during the mediation. Transformative mediators meet with parties together, since only they can give each other "recognition."

In transformative mediation, the parties structure both the process and the outcome of mediation, and the mediator follows their lead.

Mediation costs and fee schedules vary between mediators. It’s important that you discuss these factors with your mediator so that you understand both what they charge and how they bill. Often, the fee will be split between the parties to the mediation.

A mediated agreement signed by all parties is enforceable. Your mediator will advise you to have an attorney review your agreement prior to signing it. There are procedures available for having your agreement put on record with the courts.