What is a Mediator?
Although I am a Lawyer, I will not act as your Legal Counsel if you wanted me to be your Mediator in the Mediation process. My role as your mediator is to assist you in reaching a reasonable settlement that is acceptable to both parties. I will use my mediation (and legal) skills to help you identify areas of agreement and disagreements in all areas where legal problems can arise.
When you disagree, I may point out how the court might look at the problem and offer some suggestions or alternative solutions. But, I will not act as a judge or arbitrator; nor will I make decisions for you unless you both specifically request than I do so. In the absence of such an instruction, all decisions must be yours. In some circumstances, the mediator may also decide to end the process, if he or she believes that mediation is not appropriate or useful for the parties.
Please note that Mediation is a voluntary process of cooperative problem solving in which I am a neutral third party. It is important to note that the mediator only helps both of you reach a solution. When going into the mediation process you need to be aware that either party is free to withdraw from mediation at any time. Unless there is an existing contract between the parties which requires mediation if a dispute arises, or required as part of a mandated court procedure, a party need not participate in mediation.
Rather than requiring a retainer fee, I will be willing to serve as your mediator on an hourly basis, (Limited Legal Services) . This would mean that you pay as you go. However, you will be required to pay in advance for documents that you request and instruct me to prepare and file.
The Lawyer's Role
Each party should have independent legal advice about their legal rights and obligations so that they can make informed choices in mediation. Although you may choose to depart from a strict legal position because of the facts and circumstances of your own case, this should only be done with full knowledge of your legal rights.
The role of counsel is to advise the client of his or her legal rights and obligations and to act as "coach" for that party during mediation process. He or she will advise on various issues as they arise during mediation, review the memorandum of understanding and draft any other formal documents needed to carry out the terms of any agreement.
Please note that once you decide on my mediation services, I cannot serve as a lawyer to either party.
Confidentiality and Mediation
It is generally up to the parties to decide whether their mediation process is confidential or not. In most cases, they decide that it should be confidential to encourage complete disclosure since they seek to reach a settlement based on all relevant information about the dispute. Because of this, it is important that all discussions take place in mediation on an "off the record" or "without prejudice" basis. This is often called "closed" mediation and is the most common form of family mediation.
The mediator, unless otherwise agreed in writing by the parties, will not voluntarily disclose the substance of any of the discussions which take place in mediation, nor the content of any documents prepared or exchanged during the mediation process. For mediation to be a confidential process, each party must to sign an agreement not to call the mediator to testify in any subsequent legal proceeding between them.
Although the mediation process is intended by all parties to be confidential, the mediator cannot absolutely guarantee such confidentiality. The mediator may, under limited circumstances, be required by law to disclose information, such as child neglect or abuse or actual danger to the participants.
Sometimes the parties to a mediation may jointly choose to waive the confidentiality of the mediation sessions. If the parties are unable to reach agreement on all issues brought to mediation, the mediator may, if part of the mediation agreement, give his or her non-binding opinion on the terms of a possible settlement. The mediators suggestions and recommendations for settlement can take the form of a written report to the parties and their lawyers which may be used in any subsequent legal proceedings. The mediator may be called as a neutral to testify at court and be cross-examined upon his or her written report, but will not be a witness for either party.
The Benefits of Mediation
Mediation has a high rate of success which some studies place at over 80%. Although not for every conflict, participants find that mediation identifies the real issues in a dispute in a more efficient way than court proceedings. Mediation is also less damaging to on-going family relationships and the process is usually, but not always, faster and less expensive than traditional litigation. In family disputes, costs, both financial and emotional, can be extremely significant and clear "winners" are rare. This often leads to significantly reduced standards of living for both parents since funding the "battle" while maintaining separate residences can be extremely difficult. The result of an adversarial approach will leave scars for years to come especially on your children.
Mediation will not always result in a settlement and in that case, you are still free to seek other remedies through arbitration or court. Even in these cases, final costs are often reduced as the parties may have agreed on solutions to some of the issues involved in their dispute.
Of those individuals who reach agreement through mediation, over two-thirds agree that the settlement was fair and that they were satisfied with both the process and the results. By minimizing the atmosphere of conflict and providing a safe more reasonable environment, people are able to focus their energy in reaching creative and reasonable solutions to their disputes.