Mediation

What is mediation?

Mediation is a form of alternative dispute resolution (“ADR”) where a neutral third person called a mediator acts to encourage and facilitate the resolution of a disagreement between two or more parties. Mediation is a confidential and private process where generally the only persons present are the parties themselves, the parties’ attorneys and a neutral third-party mediator.

What are the advantages of mediation?

Mediation often serves the best interests of all parties involved in a legal case, especially in cases where the parties will have an on-going interaction with each other after the case is over. Mediation is efficient; informal and non-adversarial; helps preserve dignity and the relationship of the parties; provides the parties with control over the outcome of the case; provides the ability for creative option and solution development; and eliminates unlimited exposures and uncertainty of trial.

What is the process for mediation?

There are typically 4 elements to mediation. First, the mediator will give an opening statement to the parties. The opening statement provides the mediator the opportunity to introduce himself or herself to the parties and to provide the ground rules for mediation. Next, the parties will each have the opportunity to present an opening statement. A party’s opening statement should fully explain his or her position and to spell out the party’s view on the issues and disagreements. After the parties give their opening statements, the parties and the mediator will engage in a joint discussion. The joint discussion usually begins with the mediator summarizing the parties’ opening statements and asking clarifying questions. The mediator then will allow and encourage the parties to ask questions and discuss the issues more with each other rather than the mediator. However, if the joint discussion breaks down, or issues arise which are sensitive or which might be confidential, the mediator, and often time the parties themselves, will suggest that the parties separate caucus. Caucus is a private meeting between the mediator and one party, and often times the party’s counsel. When the parties are in caucus, the mediator will move between the caucuses to facilitate the process. Lastly, at some point, after using joint discussion and/or caucuses, the mediation will finalize. Mediation can conclude either through an agreement or settlement, partial or full, or, without any agreement or settlement, otherwise known as an impasse.

Do I have to meet face to face with the other side?

Generally, mediation begins with all the parties and the mediator in the same room together. However, if there is a specific reason, such as a no-contact order or a history of violence between the parties, preventing the parties from meeting face to face, the parties will begin mediation in caucus.

What happens if the parties can’t reach an agreement at mediation?

If the parties cannot reach an agreement at mediation, the case will proceed before a judge. However, between the time of impasse at mediation and the time a case is set for trial before a judge, the parties can work with each other to come to an agreement or settlement.

What types of family disputes can mediation help resolve?

Some of the types of disagreements or decision-making that often go to mediation in family cases often include the following:

  • Dissolution of marriage
  • Paternity actions
  • Modification of timesharing, alimony or child support
  • Timesharing and parenting plans for minor children
  • Equitable distribution
  • Prenuptial agreements
Can I have an attorney represent me at mediation?

Yes. You can have an attorney present to represent you at mediation. An attorney’s role at mediation is to protect their client from the opposing counsel and opposing party, to obtain settlement, to narrow the issues for trial, to control risk, and to utilize confidentiality for their client’s benefit.

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