FAQ's for Family MediationThis section covers the following questions:
What is mediation?Typically, mediation is described as a process of "assisted negotiation" in which a neutral person assists the participants in reaching mutually agreeable decisions. These decisions can involve every aspect of a dispute or decision or only particular issues. Because each person has their own unique needs and every conflict or decision has its own unique dynamics, the assistance provided by the mediator in one situation may be very different than the assistance provided in another. The role of the mediator can range from minimum to maximun involvement. For some, the mediator may provide a checklist of issues for the participants to then discuss by themselves outside the mediation session. For others, the mediator may serve as a conduit for all communication between the parties. Most often, the mediator provides a forum for the participants to discuss the issues together in an environment of safety and facilitates the participants' discussion. How is "mediation" different from "arbitration"?An arbitrator acts as a judge and tells the participants what to do, either as a binding or non-binding decision. A mediator helps the participants to devise a solution that all parties can agree to. How do I prepare for mediation?The first step in any effective negotiation is preparation. The preparation for mediation is the same as preparation for any other form of negotiation. Preparation lies primarily in gathering information in several areas. First, think about what you want to accomplish. Initially, don't worry about how the goals will be accomplished. In other words, try to avoid taking a specific position about what the details of the outcome will be. For example, in the distribution of a parent's estate, one goal may be to have an equitable distribution. Another goal may be to have one's care for aging parents recognized. One goal in developing a prenuptial agreement may be the protection of each person's children in the event of death. It may be to clearly define financial expectations of each other. For each goal, ask yourself, "Why is this important to me? What do I want to accomplish by this?" These questions will help to identify your real interests. Second, think about what it is that you need to decide. The mediator can help you identify the issues if you aren't sure even what they are. If you know what the issues are, the next step is to gather all the relevant information. This information will vary, depending on the situation it issue. In essence, it is any information that is relevant to your decision making process. This information may be gathered before the mediation session or as part of the mediation process. It is very common for participants to work with the mediator to determine what information will be relevant to their particular situation. Finally, it is important to brainstorm and think about options for resolution. Even seemingly "crazy" options can help persons think creatively to work through their family issues in a way that will meet their unique needs. This step appears later in the decision making process and, like information gathering, is often part of the mediation process but is often not something that is necessary prior to starting the mediation. What do I bring to the mediation session?It is helpful to bring to the mediation session anything that will help to objectively resolve factual issues. If discussing financial matters, it is often beneficial to bring statements of accounts, appraisals, payment coupon books, etc. Do I need to have a lawyer?It is not necessary to have an attorney in the mediation process, and many clients use mediation without attorneys. However, it is highly suggested that, if your issues or decisions have legal implications, all parties consult with attorneys so that they have legal information and are making informed decisions. The mediator cannot act as an attorney for the participants in mediation and will not prepare or file any legal documents to be filed with the court. Can I bring my lawyer to the mediation session?When clients have retained attorneys, it is often helpful to have the attorneys present in the mediation session to provide support and immediate feedback to the participants. However, because of the cost, it is often the preference of the participants to not include attorneys. As with other parties present, the presence of attorneys must be agreeable to all parties. How long will the process take?The length and pace of the process is totally dependent upon the needs of the participants. The number of sessions and the time between sessions is totally flexible and is entirely based upon the needs of the participants and the scheduling available to the participants and the mediator. Who can participate in the mediation session?Anyone is allowed to participate in the mediation session, so long as the participation is agreed upon by the parties. To maximize the confidentiality of the process, however, most couples choose to meet by themselves or with their attorneys. It is helpful, however, to include all parties directly involved in the decision making process. This will ensure that when the negotiation is complete, all "stake holders" will support the agreement. Is mediation binding?Because the outcome of mediation is totally dependent upon the agreement of the parties, nothing is binding until all parties desire it to be binding. If litigation has already been filed, any agreements reached in mediation, are usually set out in a written, legal Stipulation, which is then presented to the Court and signed by a judge. The resolution or dismissal of a suit based on such a process is just as binding as any other Order of the Court. It litigation has not yet been filed, any agreements reached during mediation are usually reduced to a written agreement that is then signed by the parties. Such a written agreement resolving the parties dispute is generally enforceable in court should any party fail to follow through as agreed. How much does it cost?The cost of mediation is determined on an hourly basis and the fee is determined by the nature and complexity of the case and the number of parties involved. When clients have settled in mediation, many attorneys will then prepare the legal documents at a substantially reduced rate, thus minimizing the amount of an attorney fee or retainer. 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Alternatives in the Resolution of Disputes |