Some clients who contact me do not know whether they want legal representation or mediation. These are two separate and distinct services. However, they are not mutually exclusive. Clients in mediation are encouraged to have separate legal counsel to confer with as needed and obtain legal advice throughout the process. The attorney prepares the client for mediation meetings and the clients have an educated discussion in mediation so they can do as much work as possible directly with each other, with the mediator facilitating the discussion. The clients then have more control over what is said and done in negotiations and the attorneys are used to consult with as opposed to doing the negotiation on behalf of their client.
At the outset, the mediator requests information to determine whether the mediator can be of assistance to the clients. Domestic violence, uncontrolled rage, chronic substance abuse and mental health disorders are factors that should be conveyed to the Mediator and taken into consideration when deciding whether mediation is appropriate. When there is a concern, a client should first consult with an experienced family law attorney who understands the mediation process.
After brief intake, an initial joint meeting with the clients takes place (I generally block out two hours). At the beginning of the first meeting, prior to discussing the details of their own situation, the clients review the Agreement to Mediate with the mediator and the ground rules for engagement and what to expect from the process. When ready to proceed further, the Agreement to Mediate is signed.
The clients then move through the stages of the process as follows:
- Clients each provide a brief summary of the background leading to mediation;
- Clients express goals for the process, Why they are using mediation and what do they hope to accomplish in the big picture? Are clients needing a parenting plan? Do they want to work through issues with the goal of staying married? Are they working on separation and/or divorce?;
- Identify issues and matters to be addressed;
- Collect information (facts, interests of the parties – what is important to each, advice from other professionals – attorneys, financial or child specialists);
- Brainstorm options for outcome (the range of resolutions can be much broader than those available to a judge if the court is asked to decide the issues);
- Narrow options to be most consistent with the clients’ interest;
- Outline/Summarize agreements reached; and
- Reduce the agreement to writing if desired.
When possible, the parties are encouraged to meet together with the mediator. Separate communications can increase fear and tension and lead to miscommunication.
Mediation differs from Arbitration and Litigation. In mediation there is no third party decision maker. It is designed to offer the clients a “safe place” to discuss their issues while allowing the clients to maintain control over the outcome and the time spent working on the issues.
There is no commitment to a certain number of sessions. The clients determine the pace of the process.
In mediation, disclosure of relevant and requested information is part of the process. Disclosure is not avoided. However, there is a focus on meaningful and efficient disclosure.
The emphasis is not on “cheap and quick” but a quality resolution that will serve the clients over time. (Mediation is usually much quicker and less costly than litigation – using the courts to decide the issues.)