FREQUENTLY ASKED QUESTIONS ABOUT MEDIATION

What is mediation?

Mediation is the process of negotiating the resolution of a conflict with the assistance of a neutral third party (the mediator) who facilitates the negotiation process.  Mediation is conducted through a series of informal meeting between the parties and the mediator to address the issues the parties agree are important to them.

How is mediation different from litigation?

Litigation is based on the parties acting as adversaries, fighting against each other to convince the court to accept their individual position regarding the conflict as the correct outcome.  Mediation involves the parties negotiating their own agreement and jointly resolving their conflict with the help of the mediator.  In mediation, the parties maintain control of the outcome and nobody else can force them to accept a decision against their will. 

How is mediation different from collaborative law?

Mediation and collaborative law both involve a series of meetings with the goal of resolving the conflict between the parties.  In collaborative law, the parties and their attorneys are involved in the four-party conferences with the attorneys representing their clients and facilitating the negotiations between the parties.  In mediation, the parties generally meet with only the mediator present and the attorneys are available outside the mediation sessions to offer the parties legal advice and to finalize the parties’ written agreement.

What are the benefits of mediation?

Mediation can be less stressful, less time-consuming and less costly than litigation.  Mediation can also have lasting effects on how the parties communicate and interact with each other after the mediation process ends, which is particularly important when the parties have children together and will need to continue to interact as they co-parent their children.  Mediation allows the parties to maintain control of their own decision-making instead of putting their lives in the hands of the court.  Individuals are much more likely to be satisfied with the outcome of mediation as opposed to litigation.

Am I required to be represented by an attorney to participate in mediation?

No, you are not required to be represented by attorney to participate in mediation.  However, you should have an attorney to give you legal advice and to make sure the resulting agreement is legal and enforceable.  The mediator is a neutral person, so he or she does not represent either party and will not give advice to either party.

Can I choose any attorney I would like to represent me in mediation?

Your choice of attorney is your decision in mediation.

What issues can we address through mediation?

In mediation, you can address any issue that both parties agree needs to be resolved.  Frequent issues addressed in mediation are divorce or separation, dividing property, financial support and child custody and co-parenting decisions.  Individuals and businesses can also use mediation to resolve conflicts outside the family law arena.

Do attorneys charge less for mediation cases?

It depends on the attorney.  Most attorneys charge their usual hourly rate for work performed, regardless of which process the parties choose. However, the mediation process can substantially reduce the number of hours attorneys need to spend working on individual cases, which means that mediation can reduce the overall cost of attorneys’ fees.  In mediation, the parties usually spend more time meeting together with the mediator than they do meeting with or speaking with their attorneys.

What if the other person doesn’t want to participate in mediation?

Mediation requires voluntary participation by both individuals.  If one party refuses to participate in mediation, it is not an option.  There are certain provisions in the law that require parties to attend at least one mediation session prior to having a court hearing, but those instances are the exception and not the rule.

What happens if we don’t reach an agreement?

Although the majority of people who participate in mediation reach mutually acceptable agreements, there are times when the conflict is not resolved.  In those cases, the parties must choose another process to address the issues.  They could try direct negotiation between the two of them, collaborative law or litigation.  Even if the parties don’t reach an overall agreement in mediation, they may reach agreement on some issues and may also narrow the scope of their conflict to make it easier to resolve through another method.  They may also learn some new communication techniques even if they don’t reach an overall resolution of their conflicts.

Does mediation take longer than other methods?

Mediation is usually a time-efficient method of resolving conflict.  It generally takes much longer to litigate a dispute through the court system than to resolve it through mediation.  Sitting down together without the formality of mediation sessions can be quicker than mediation, but few people are able to effectively resolve their conflicts in that way.  The mediation process usually involves several sessions with a few weeks between each session, which allows the parties to take whatever actions are necessary between sessions to be ready for the next session.

What happens if we need other individuals involved in the mediation?

Parties sometimes need the assistance of professionals during the mediation process.  They may include financial experts, mental health experts or co-parenting experts, just to name a few.  The parties decide jointly as part of the mediation process whether they need experts or other individuals involved, the extent of their involvement, how they will be compensated and all other specifics.

Can’t we just sit down and reach an agreement without having attorneys involved?

Some individuals are able to sit down together and resolve their conflict privately without the formality of the mediation process and without the assistance of a neutral third person.  However, the majority of people benefit from the assistance of a mediator by learning more effective communication techniques.  Even if parties work out the terms of their own agreement without meeting with a mediator, they should have attorneys prepare the written agreement language and both parties should have advice from separate attorneys regarding the terms of the agreement.