Mediation Consultation & Process ~ What to Expect
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WHAT IS MEDIATION?
Definition: Mediation is facilitated negotiations for what you perceive to be your fairest and most constructive agreement possible.
1. Voluntary--any party can leave at any time for any reason.
2. Collaborative--parties work together on their shared problem, resolving their conflict through their perceived fairest and most constructive agreement. There is no need to convince the mediator of the value of a position because the mediator decides nothing; the parties decide everything.
3. Fair--mediation utilizes standards of fairness which include recognized objective standards and principles of fair play, full disclosure, fully-informed decision making, opinions of mutually-agreed-upon experts and the full and equal participation of all parties of the mediation.
4. Confidential--Mediation is confidential by contract, rules of evidence or privilege.
5. Informed--The mediation process provides a full opportunity to obtain and incorporate legal and other expert information and advice. Mutually acceptable experts (accountants, appraisers, pension evaluators, child development specialists, career planning specialists, and legal counsel) may be retained jointly by the parties.
6. Impartial and Safe--The mediator has equal responsibility to each mediating party and cannot favor the interests of any one party over another. Parties are assisted to feel comfortable and confident in their agreement-reaching discussions.
7. Self-Responsible, Satisfying, Creative--People support what they help to create and participant satisfaction, compliance and self-esteem are usually elevated. The mediation process is flexible; mediated agreements are personal, customized and creative. Mediation is the beginning of a new relationship that is respectful, solidly based, and future-focused.
WHAT TO EXPECT IN YOUR MEDIATION
This information is intended to assist you to maximize your mediation experience. Our goal is to assist you to most effectively, comfortably and confidently represent yourself in mediation. In mediation, you will be making all of the decisions. The mediator has no decision-making power. Thus, it is important for you to consider how you can best represent your interests in mediation, as well as the results that you would like to create in mediation. Finally, we should note that, at Three Rivers Law Center, we emphasize the transformative theory of mediation. This means that it is our goal is to help transform the interactions between the parties to a more positive and empowered place, during and after the mediation. In the end, our hope is that not only will we have a fair and satisfying agreement in place, but that everyone involved feel “settled” regarding your feelings about the conflict. In cases where future interactions are likely to occur (as when there are minor children in a divorce), having the conflict fully resolved in your heart and mind will help to avoid new conflicts.
How long will the mediation take?
It is hard to predict with precision how long a mediation will take. This depends primarily on how agreeable the participants are. Generally, we meet three times for approximately two hours each meeting.
What if we already agree on lots of issues?
Great! The first thing that we want to do in mediation is to identify what you already agree on. We will use those points of agreement as a foundation for your overall Agreement. The standards that make sense to you on certain "easy" issues can often be applied to resolve other issues. We will want to be sure that your Agreement is well-informed and that you are aware of the many issues that you may want to consider. What is included in your Agreement is up to you. Our goal is to support your well-informed decision-making.
What are our chances for success?
The vast majority of mediating parties can and will reach comprehensive resolution. This high success rate is due to most participants being highly motivated to reach agreement.
What if we don't reach agreement?
In mediation, all discussions and materials, with very few listed exceptions, are confidential. If no mediated Agreement is reached, evidence of the mediation discussions, mediation materials and any draft mediation resolution will not be admissible in court or any other adversarial proceeding.
Who pays for mediation?
Responsibility for mediation fees is an issue to be decided by mediation participants. Participants are encouraged to consider sharing fees to some extent so all will benefit from expeditious and economic resolution.
What about our own attorneys?
We advise you to have any mediated Settlement Agreement reviewed by individual legal counsel prior to your signing that Agreement. This legal advice may be best obtained early in the mediation, by legal counsel's review of a near-final draft Agreement, and by counsel's review of the final Agreement. This level of consultation may dramatically elevate your comfort and confidence in the final agreement, especially when there are issues you are unsure about.
What about utilizing experts?
It may make sense, in a particular case, for mediation participants to retain mutually trusted experts. For example, participants may desire a trusted valuation of real property, personal property or a business. It is also not uncommon for mediating parties to choose to jointly consult with an accountant or tax expert. Mediation participants with parenting concerns may find it beneficial to obtain the thoughts and recommendations of a trusted child psychologist. Mediation participants may choose to jointly retain an impartial advisory attorney who, based upon an agreed-upon set of facts, may render an advisory non-binding opinion on how a court might resolve the identified issues.
What else can I do to prepare?
Perhaps the most important thing any mediating party can do to ensure a satisfying and successful mediation experience is to prepare for the mediation discussions by seeking clarity as to their feelings on the conflict, desired outcomes, and perceived standards of fairness. Stated otherwise, "What do you need to get off your chest? ", "What do you want?", "How will you know that it is alright to agree?", and "What issues and problems might occur in the future?"
Phases of Mediation:
1. Introductions, Orientation, and Agreement to Mediate
2. Identification of Points of Agreement and Prioritization of Open Issues
3. Development of Needed Information and Documentation
4. Focused Discussion on Interests and Desired Outcomes
5. Resolution of Open Issues through Listening, Brainstorming, Mutually Acceptable Objective Standards of Fairness or Expert Opinion
6. Drafting, Enhancement and Processing of Agreement
Getting others onboard to mediate can seem like a daunting task, but we are here to help. Call (360) 442-4101 and let our experienced, compassionate attorneys guide you through this difficult process. We provide caring counsel that makes navigating the process a little bit easier. Call us today.