What is a Mediator?
A mediator is a neutral third party who helps facilitate discussions between two or more parties in an effort to find a mutually agreeable resolution of matters in dispute. Our firm has two mediators, myself and Andy Van Der Maaten, who are trained in general mediation, which includes resolving cases in litigation, personal injury, real estate, employment disputes, and elder law disputes, including business and farm transitions, and estates. Also, I have additional specific certification for certain domestic relation issues, including divorce, custody and other issues related to children and families. A mediator is not a judge or an arbitrator and does not have authority to make decisions about the case. Although our mediators are licensed attorneys who practice in many different areas of law, when serving as mediators we do not represent either of the parties and also do not serve as therapists or a counselors.
What is Mediation?
The goal of mediation is to find solutions to issues in dispute, not to lay blame on any of the parties. The mediator will first meet either together or separately with each of the parties, and their attorney if represented, to discuss the mediation process and to learn about the parties’ issues and wants. From then on the mediator will work with the parties to determine whether the issues in dispute between them can be resolved by mutual agreement. The mediator helps clarify the issues and may offer new ideas and solutions that the parties may not have thought about previously. The mediator provides a safe environment for all involved and draws up any agreement that has been reached at the end of the mediation process.
Is Mediation Confidential?
Yes, statements made in mediation are made for purposes of compromise and are not admissible in court. Except to the extent required by law or the court, all information given to the mediator is confidential and the mediator may not be compelled to testify except for the purpose of testifying as to the existence of an agreement reached through mediation (if the parties both consent to such disclosure).
Is My Attorney Involved in Mediation?
Yes. Many cases that are mediated are cases where one or both parties have already sought the advice of an attorney. A significant number of mediated cases are already filed as court cases and may even already be set for a trial date. It is common for parties to a dispute to have their attorneys participate in mediation and that can be very beneficial to the process. Most of the time when attorneys participate, the mediation is done in a caucus style rather than a conference style.
What Is the Difference Between Caucus Mediation and Conference Mediation?
Caucus mediation is where the parties are generally separated from each other during the course of the mediation. The parties may have support persons and other professionals present with them, such as financial advisors, accountants, realtors, insurance adjusters or bankers. In a caucus mediation, the mediator goes back and forth between the parties and helps use the mediation process to arrive at a settlement of the issues. In conference style mediation, the parties meet face to face with the mediator, sometimes with or without attorneys present as determined by the parties. Conference mediation is used when the parties agree in cases where the parties will have an ongoing relationship of some sort following the mediation, such as in domestic relations cases, family, business or estate cases, and workplace cases.
What Information Should I Bring to the Mediation?
The mediator will inform you or your attorney of the information that can be submitted ahead of time. Most of the time, this is done in the form of a confidential conversation between you and the mediator, or a written submission by your attorney. It is important to the progress of the mediation that the information provided confidentially to the mediator be as complete as possible, including assessment of strengths and weaknesses of your position and the other party’s position. Having a good understanding of the basis for your concerns allows the mediator to guide discussions in the matter most likely to result in a satisfactory resolution.
What Information Should I Disclose to the Mediator?
You should share honestly your thoughts and concerns in relation to your case as such information will assist the mediator in understanding the reason(s) for your position on various issues in dispute. Having a good understanding of the basis for your concerns allows the mediator to guide discussions in a manner most likely to result in satisfactory dispute resolution.
How Much Does Mediation Cost?
Most mediators charge a regular hourly rate, which is similar to the rate charged by attorneys. Billing arrangements are discussed at the beginning of the mediation. If attorneys are involved in the mediation, of course each party is responsible for paying their own attorney. In addition, there may be an administrative fee charged by the entity responsible for coordinating mediations within the county or judicial district. Typically the parties are expected to each pay one half of the total cost of a mediation and you need to be prepared with funds to pay that day for the mediation to take place. If you are represented by an attorney, you are responsible for any fees related to your attorney’s participation in your mediation.
What Issues Does Mediation Cover?
As the saying goes, everything is negotiable. In other words, any issues that the parties agree to discuss may be covered in mediation. This is one of the facets of mediation that makes it different from litigation and can allow parties to reach novel and creative solutions which would not be possible through the court process. All aspects of your case may be discussed and settled through mediation.
May I Speak With My Attorney During Mediation?
Absolutely. There is no limitation on your right to seek legal advice, or frankly any other advice, during the mediation process. Your lawyer may be present at the mediation and you have the right to speak with your attorney either privately or with the mediator present at any time. If you have an attorney but your attorney is not present for the mediation, let the mediator know right away if you wish to consult with your attorney by phone or otherwise before going further.
How Long Does Mediation Last?
The length of a mediation depends on several factors including but not limited to the readiness of the parties to resolve the issues, commitment to the process of mediation, the level of conflict between the parties and the complexity of the issues in dispute. We advise our clients to anticipate that a mediation will take at least three (3) hours, but it can be much shorter or longer depending on how quickly things progress through the process. Sometimes parties may not reach a full agreement in the first mediation session, but they have made enough progress to agree on scheduling another mediation session at a later date to continue working through the remaining issues in dispute.
How Do I Prepare for Mediation?
You can increase your chance of reaching an agreement through mediation if you spend some time preparing for your mediation in advance. You can best prepare by creating a list of the issues you feel need to be addressed in your case. If you are represented by an attorney, it may be a good idea to meet with your attorney sometime prior to your mediation so the two of you can discuss the issues in dispute and determine areas where compromise may be possible.
Is a Mediation Agreement Legally Binding?
Generally, yes, an agreement reached through mediation is considered a legally enforceable contract, which is often later incorporated into a settlement agreement and a court order through the assistance of the parties’ legal counsel. If either of the parties subsequently attempts to back out of the agreement, the other party may ask the court to enforce the agreement. Often the mediator prepares what is called a “Memorandum of Understanding” which sets out the mediator’s understanding of the agreement. This is a written document that is given to the parties.
What If We Cannot Reach an Agreement?
If you cannot resolve all issues in dispute through the mediation process, you may continue to negotiate further on your own or with the assistance of the mediator. It is not unusual for telephone or other discussions to continue following an in-person mediation which then results in a successful resolution of the conflict.
Does Mediation Really Work?
Recent studies in Iowa show that mediation results in settlement of all or part of the issues in dispute in at least 75% of cases. Even in cases where mediation does not result in a full settlement agreement between the parties, the process typically helps parties narrow the issues and reduce the time and expense associated with going to trial if needed. Even if you are involved in a very high conflict case, we recommend you go to mediation with an open mind – people are often pleasantly surprised at what can be accomplished through the mediation process. In addition, studies show that parties are generally more satisfied with agreements reached through their own mutual efforts than with court orders entered by a judge after an emotional, time consuming and expensive trial.
Questions? Please contact us at 563-382-2959 or firstname.lastname@example.org if you have any questions about mediation.