Frequently Asked Questions

Mediation is a process for resolving disputes, making decisions on issues about which there is serious disagreement, building agreements, and improving relationships when there will be an ongoing relationship. The mediator, as an impartial “third party,” helps those involved (the “parties”) effectively communicate and problem solve. Another term for mediation is facilitated negotiation. Mediation is a confidential and voluntary process to collaboratively build agreements and make decisions.

Once agreements are reached within a mediation, the mediator will produce a clear and comprehensive summary of those agreements as a document for the parties to sign. Once signed, those agreements can be considered to be binding in the sense that, should one of the parties not abide by the agreements reached, the signed document can be produced as evidence in a litigation should the dispute move to that setting.

The mediator does not make decisions or advise the parties about what they should do or how they should resolve their conflict or disagreement. The mediator’s role is to support all parties equally, helping them to communicate and negotiate productively. The mediator helps manage the process of communication so that it is most effective, keeps track of the issues and progress on the issues, helps the parties reality test and consider the various options available to them, and documents for the parties the agreements they are able to reach.

At the start of a mediation, the parties sign an Agreement to Mediate that, among other things, confirms that the discussions that take place during the mediation will be held in confidence by the parties and by the mediator. This is a key provision that allows parties to discuss all aspects of the situation they are dealing with without concern that what they say will be used against them in the future.

The only exceptions to confidentiality are situations in which mediator suspects that another person may be in danger of harm, including possible child abuse, which includes sexual abuse, physical abuse, and neglect. In these situations, the mediator has the ethical responsibility to break confidentiality and report information concerning threats of physical harm.

In most cases and preferably, in my practice, we meet together in the same room for all sessions in order to maximize the opportunity to communicate effectively and to encourage mutual understanding and effective problem-solving. However, there are some circumstances when I, as the mediator, can meet with the parties in what is called a private session or a caucus. In that event, everything that we talk about in the private sessions are confidential and I, as the mediator, will not reveal to the other party what it is we’ve talked about in the private session unless you approve otherwise. If I meet with one party privately, I will always meet with the other party or parties privately. In my practice, I prefer not to use caucusing in the belief that our goal is to facilitate effective communication and that is best accomplished in joint session.

In some not common circumstances in which the parties are unwilling or unable to meet together in the same room, for one reason or another, shuttle mediation is an option in which I, as the mediator, move back and forth between the parties in different rooms or at different times, carrying messages and helping the parties communicate, explore options, and seek agreement within that communication structure.

There are a couple of options if you want to resolve a dispute in mediation rather than avoid it or initiate litigation to deal with the situation. The first option is to approach the other party or parties, acknowledging the problems that exist, and asking them if they would be willing to meet with you in mediation to resolve the issues. In this case, it can be helpful to express a desire to resolve the issues collaboratively rather than adversarially and to share with them your belief that reaching a good outcome that takes everyone’s interests into account is possible.

If you don’t feel confident that the other party or parties will be receptive to your approach, the mediator can contact the other parties on your behalf. In this case, I, as the mediator, contact the other party or parties, telling them that I’d been contacted by you, asking if they’d be willing to talk with me about the mediation option, explaining mediation and my role, and exploring with them any concerns or reservations they might have, and answering any questions they have. In most cases in my experience, approached in this way, people most often will agree to try the mediation option.

Mediation is suitable for most conflicts or disagreements in which those involved are willing to meet in mediation. As long as the parties are willing to engage in collaborative problem-solving, mediation is a useful way to facilitate the necessary communication.

There are some circumstances that would advise against the use of mediation. Some that come to mind are:
— If one of the key people is unwilling to meet in mediation.
— If it is important that a legal precedent is established.
— If the power dynamics between the parties are so extreme that fair collaborative negotiations are not possible.
— If one of the parties is unwilling to act in good faith and honestly to reach collaborative agreements.
— If it is not possible to create a setting that is, and is experienced as, safe for one or more of the parties.

No, I will not advise you what you should do. The resolution of the issues and the agreements made are up to the parties. I will do my best to help you consider all options available, to evaluate those options, and to reality-test the feasibility or suitability of proposed solutions and settlements. But the decisions about how to resolve the issues are entirely up to the parties.

The duration of a mediation will depend on the number and complexity of the issues and how difficult it is for the parties to come to agreement on the issues. Some situations are resolved in one two-hour session. Other situations require several meetings to work through the issues and come to agreement.

Research indicates that a high percentage, ranging from 65% to 95%, of cases that go to mediation successfully reach agreements that are satisfactory to the parties. In my experience, if the parties are willing to use mediation, they are usually able to find solutions that are preferable to not resolving the dispute or to the alternative of litigation or some other adversarial option.

The cost of a mediation will depend on how many sessions are necessary. The number of sessions will depend on the number and complexity of the issues involved, the degree of disagreement between the parties, and how easily or not they are able to resolve their disagreements. Some situations are resolved in one two-hour meeting. Other situations require a number of meetings to work through the issues and resolve the disagreements to find solutions that work for everyone involved. My fee is $150.00 per hour including the time needed to draft the final settlement agreement.

In mediation, the parties determine the resolution of the dispute and the mediator’s role is to help the parties communicate and problem-solve effectively. In arbitration, the parties present their case to the arbitrator and the arbitrator acts as a judge, listening to the various sides and considering the situation, and then rendering a decision on how the conflict will be resolved. The arbitrator determines the outcome. In most cases, the arbitrator’s decision is binding. In arbitration, the parties don’t control or determine the outcome. In mediation, the parties themselves determine the outcome.