Mediation FAQ

Because many people have little or no experience with mediation, we have prepared a list of answers to frequently asked questions. Please contact us if you have a question that is not addressed here. Click on any question below to see the answer.

How can I tell whether or not my problem could be resolved by mediation?

Almost any problem can be resolved by mediation, provided that the parties are willing to give the mediation process a fair try at being successful. Each party must be willing to respectfully listen to the other’s point of view and be open to explore choices and alternatives that are different from their current perspective and stated positions.

How can I know that my problem will not be made public if I am involved in mediation?

By written agreement, everything said or disclosed during the Mediation Process remains confidential, unless there is a subsequent explicit agreement to allow disclosure either by the Mediator or other Stakeholders.

A second type of confidentiality arises if the Mediator chooses to meet with a Stakeholder in a private discussion or caucus. Whatever is confidentially disclosed to the Mediator during this private discussion also remains confidential.

Does Mediation have to be completely voluntary?

Not always. Occasionally a court will order the parties to mediation. However, this does not mean that the parties are required or forced to come to agreement or settlement. If the Mediation Process does not resolve the dispute, the Mediator only reveals to the court that it was not resolved and the matter is ready for Arbitration or Trial.

The other party involved in my dispute is very difficult and domineering. How can I be sure I will be safe and won’t be taken advantage of in a mediation?

The nature of a dispute is that people are often angry. The experienced Mediator will lay out ground rules to moderate these emotions. The Mediator must be trained to be fair, unbiased and a true neutral. The Mediator must be fair but firm in order to maintain a respectful environment. The Mediator must have no stake in the outcome of the mediation process other than to facilitate the stakeholders to make good decisions. Hopefully, good decisions will lead to peace between the parties.

What happens if no settlement is reached through mediation?

Sometimes peace is beyond the capacity of the parties. If that is the case, a good decision is one that both parties have discovered together during the process and, most importantly, that both parties can live with. This may include submitting the matter to arbitration or going to trial. It may also include scheduling another mediation session after the parties have had time to think things through more clearly.

How can I judge that a mediator is “right” for me and my dispute?

First, the Mediator must be a true neutral. The Mediator must not have a stake in the outcome of the mediation, other than to facilitate the stakeholders to make good decisions. You should feel free to ask all your questions up front. Ask yourself whether the Mediator listens to you and gives you proper feedback. Do the Mediator’s education and background seem appropriate for your situation? Will the Mediator provide references, if asked? Will the Mediator go to your location or where the dispute is occurring?

How do I know that a Mediator has the expertise to handle my unique problem?

The subject matter of the dispute is not the critical issue for choosing an effective Mediator. A well trained and experienced Mediator will be able to get to the real interests of the parties. This is much more important to a successful outcome in a Mediation process. Experienced Mediators have many resources and colleagues available to assist in overcoming particular technical difficulties presented in the dispute.

Do I need to have an attorney before I hire a Mediator or if I already have a good Lawyer why do I need a Mediator?

You do not need an attorney before you hire a Mediator. If you have a good lawyer, a Mediator can help you and your lawyer to effectively analyze all settlement possibilities. Good lawyers generally welcome the participation of a neutral Mediator to help examine both the strong and the weak parts of your arguments. In either case, mediating a dispute before litigation has been initiated or as soon thereafter as is possible, will enhance the probabilities of a successful mediation. Once a tentative agreement has been reached, you should always be afforded the opportunity to consult your own counsel before you sign the final agreement.

Will the Mediator act as my attorney or help me with my legal questions?

The Mediator will not act as your attorney. Mediators do have different styles and methods of working. Some Mediators use a completely neutral strategy and do not attempt to evaluate the case or move the parties off of their stated positions. Some Mediators use a pressing strategy where the Mediator is willing to push parties off their positions through argument and persuasion. Other Mediators utilize an evaluative strategy, where the Mediator is willing to point out the strengths and weaknesses of each party’s case and when asked, they offer their opinions or advice about the parties’ choices. This is usually done in a private caucus.

What strategies do you use in the meditations you conduct?

While this is always a case specific decision, I generally prefer to start with the neutral position, creating a safe environment in which the parties are free and comfortable saying their truths and what is really important to them about their disputes. I try to have the other party to the dispute acknowledge that the speaker has been heard even if there are substantial differences or points of view. I often find this process of empathetic listening reveals the solution to the dispute that creates a win-win for both parties.

Because I have over 40 years of litigation experience, I am also willing to utilize the evaluative strategy, pointing out the weaknesses and strengths I see in the party’s positions. I am often able to do what the parties’ own lawyers are unable to do for fear of offending or alienating their clients. In the end, I work for all stakeholders and help them to make the best decisions they are capable of making. Getting to their real interests and needs is the primary key to successfully resolving disputes.

Why does it take so long these days to get disputes resolved through the court system?

The Judicial system has generally been adversely affected by a poor economy and the severe financial crisis facing both State and Local Government. Resources have been stretched almost to the breaking point in many jurisdictions.  Mediation is a way to resolve disputes by keeping the conflict in the hands of the stakeholders. Mediation is a gateway to civility and a pathway to peace.

Can I appeal the outcome of my mediation if I change my mind?

No.  Once you have signed a Settlement Agreement, it becomes a binding agreement.  You may, of course, seek to amend the agreement either directly with the other party to the Settlement Agreement or you may seek the help of the Mediator to modify or reach a different agreement.

Will I be allowed to speak and ask questions during the Mediation Process?

Absolutely.  It is essential that you speak and fully discuss what is important to you concerning your dispute.  It is equally important that you be heard and acknowledged by the other party and the Mediator.  You should be allowed to ask any relevant questions you may have on any issues involved in your dispute.