Frequently Asked Questions About Mediation
Mediation FAQs ©2014 Adam L. Powers / MarksPowers LLP
What is mediation?
When people find themselves in conflict, their options have traditionally been to work it out among themselves (which is not always possible) or to resort to litigating their differences in court. Whether those differences arise out of a business conflict, a personal injury, a divorce, or any other conflict, people quickly find that the court system is agonizingly slow, mind-bogglingly expensive, and often leaves everyone disappointed with the result.
While litigation is sometimes necessary, it is rarely the most efficient means to resolve a dispute. Mediation is one particular method of Alternative Dispute Resolution (or "ADR"), and is a process that takes a small fraction of the time, expense, and energy of courtroom litigation, and yet allows participants to obtain a resolution that addresses their own interests, even in ways that might never be available in the formal setting of a courtroom.
Unlike a courtroom setting, mediation is informal and is not governed by rules of evidence or procedure. Unlike a judge or jury, a mediator does not make decisions about who is right. The parties themselves determine the outcome of their case.
What is the mediation process like?
At its most basic level, mediation is a conversation facilitated by a mediator, who is a neutral (or non-biased) party and who has training and experience in managing the conversation to work toward a mutually acceptable solution. Effective mediators apply a broad range of tools to identify the specific areas of conflict, fully explore the interests of the people in the dispute, and help them generate possible options for solutions. In a successful mediation, a mediator will help to craft an agreement that will serve the participants well in the future.
Like disputes, no two mediations are identical. A skilled mediator will tailor the process to the case, and the format of the conversation may unfold in a number of ways.
Before the mediation, a mediator may have a preliminary telephone conference with the parties or their attorneys in order to plan for the mediation. Often, in cases with attorneys, each lawyer will then send the mediator a Pre-mediation Submission or Mediation Statement, designed to brief the mediator on the subject of the case and particular issues that are likely to be important.
A typical mediation begins with arranging whatever the participants need to be comfortable. Whether it's coffee, tea, snacks, water, tissues, or fresh air, a mediation should be as comfortable as possible. Breaks during a mediation for any purpose are always OK.
Usually, all parties will convene around a table and the mediator will open the session by reviewing the purpose of the mediation and explaining how the process will be conducted. Participants sign an "Agreement to Mediate" (which is a commitment to participate in good faith, but which does not obligate anyone to reach any particular resolution).
After opening remarks, the mediator may ask to hear briefly from each of the parties. Unlike being in a courtroom, parties will have an opportunity to speak without being interrupted: a skilled mediator will work to ensure that these statements are uninterrupted time. This is an opportunity for parties to express their view of the matter, their hopes for resolution, or anything else that may be productive. It's also an important opportunity for the non-speaking side to learn about the speaker's view of the case without needing to respond.
Once all parties have had the opportunity to be heard, the mediator may choose to continue the conversation around the table, and may ask detailed follow-up questions to fully understand all parties' views of the matter in dispute. Or, the mediator may choose to break into private conversations (sometimes called caucuses) to check in with each side privately. Often, a mediator spends significant time conveying information back and forth between parties in separate rooms. Sometimes, participants remain in joint session throughout the mediation and never break into separate rooms.
It is important to keep in mind that the mediator controls the process, but that she or he does so with the input and consent of the parties. For example, if in a joint meeting one person would like to check in privately with the mediator, a good mediator will accommodate that request, and then also give the other person an opportunity for a private conversation.
For people in conflict, the prospect of being at the same table with an adversary can be daunting. In the hands of a skilled mediator, the conversation follows a constructive pattern without subjecting anyone to abuse or extreme discomfort. Participation is invariably challenging, and sometimes uncomfortable, but most people leave a successful mediation with a great sense of relief.
What are the ground rules?
Mediation is voluntary. Even in cases where a court has ordered the parties to participate, they are not obligated to come to any particular resolution. If a participant finds that no suitable agreement can be reached, that party is free to terminate the mediation and pursue other avenues for resolution. Only if an agreement is reached that all parties can accept, and they commit to doing so, does the resolution become binding upon the parties.
Mediation is confidential and privileged. Vermont law provides that communications during a mediation are confidential unless participants decide to waive that confidentiality. They are also privileged, which means that a party can prevent statements made in a mediation from being introduced against them later in court. This policy is intended to create a secure forum for parties to feel comfortable brainstorming, sharing ideas or concerns, and work freely toward resolution.
Beyond those basic rules, parties may assist a mediator in creating any other ground rules that will contribute to a successful mediation.
Is a mediator like a judge?
A mediator is unlike a judge for several reasons. Most importantly, a mediator will not try to decide who is right or who is wrong. A mediator will not impose his or her conclusions about how the case should be solved, or what the parties should do. A mediator might offer suggestions, but the most effective mediators will enable the parties to generate their own options for resolution. Parties in a mediation don't need to spend time convincing the mediator that their side is right, because the mediator will remain neutral, and won't have the opportunity to make any kind of ruling on the case.
Because the mediator won't take sides, it's usually OK for parties or their attorneys to speak privately about the case with the mediator without the other side present.
How long do mediations take?
Because mediation is condensing the work of months or years of litigation into a few days, or even a single day, it can be a time-consuming process. Participants should be prepared for a very long day of difficult decision-making. Also, there frequently are long stretches of quiet time while the mediator meets with the other side. Progress can be agonizingly slow as parties absorb and adapt to new information, and carefully test proposals before responding. The slow going can be frustrating, but patience allows progress in the long run.
People planning even a short day of mediation should keep their calendars free of commitments following the mediation, and should be aware of the potential for the session to run much longer than expected.
In cases where a lawsuit has been filed and attorneys are involved, scheduling a full day of mediation is common. In divorce cases where the parties are unrepresented (or "pro se"), we recommend breaking the issues up into two-hour blocks, to be mediated over the course of several sessions.
What should I look for in a mediator?
In Vermont, anyone who has completed a week-long certification training is legally qualified to mediate. That doesn't mean they'll be an effective mediator. Mediation is hard work; before people commit to using the services of a particular mediator, they should confirm that the mediator has extensive training beyond the minimum requirements, has considerable experience mediating, is dedicated to helping parties get the most out of the process, and is a comfortable fit for the personalities involved.
Being a lawyer is not mandatory: in fact, there are several excellent non-lawyer mediators in Vermont. Michael, Tad, and Adam all happen to be lawyers, and they all work to apply their knowledge of the law and the court systems to helping parties reach reasonable settlements.
Remember that even if your mediator is a lawyer, he or she can't be your lawyer. A mediator must remain unbiased, and it is critical that participants feel comfortable with their mediator's ability to remain neutral. It is very important to seek the advice of your own qualified attorney, who will look out for your interests alone, before committing to any settlement agreement.
Being familiar with the law underlying the dispute is only one important qualification for a good mediator. Equally important is the ability to manage the process in a way that moves participants forward, toward a resolution, with the parties' own unique goals and interests as a guide.
Finally, all participants must be comfortable with the mediator's personal style. Some mediators use an evaluative style: freely evaluating the strengths and weaknesses of each side's case (in private sessions), in order to help them assess their alternatives and make wise choices in the mediation. Other mediators are more facilitative: refraining from asserting their own judgments and instead facilitating a conversation that draws out the assessments of the parties themselves. An excellent mediator will be capable of using either or both of those approaches, and a range of others as the situation dictates, and may even ask the participants for their input regarding the process itself.
When you're searching for a mediator, most qualified mediators will be happy to spend a few minutes speaking with a potential client at no charge to explain the process, answer any questions the client may have, and allow the client to determine whether the mediator would be a good fit.
How often does mediation resolve disputes?
Somewhere between 60 and 80 percent of cases that go to mediation are resolved (or partially resolved) through the process.
Who attends a mediation?
Far in advance of a mediation, it is important to consider who will need to be present at the mediation. Generally, each party needs to attend. When the parties have lawyers, the attorneys usually attend as well. If there are other people who are not officially part of the conflict but whose participation would be important in being able to reach a settlement or commit to one, their participation should be considered. It is very important that neither the mediator nor the other participants be surprised by unexpected participants: be sure the mediator is aware of anyone who plans to attend on your side.
In a complex mediation, there might be many attorneys, experts, insurance adjusters, and even multiple mediators. That can be a very expensive day, but if it avoids the need to employ all of those people for months of litigation, it can be money and time very well spent.
In cases where parties don't have lawyers or where they feel comfortable mediating without their attorneys, they might arrange to have attorneys available by phone. That way, they can seek advice before finalizing an agreement, but can avoid the expense of an attorney's attendance for the full session.