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Frequently Asked Questions About Mediation

What is Mediation?

Mediation is an effective way to resolve disputes without the need for attorneys or the need to go to court. Using a neutral third party – a mediator – both sides work to reach a mutually agreed upon solution. There is no right, wrong, or need to prove the other is at fault because the mediator does not assign blame and there are no penalties imposed.

The mediator’s role is to help both sides attain a solution and to arrive at an outcome that they are happy – or at least willing – to accept. Mediators don’t take sides, make judgments or give advice or guidance. They are simply there as a conduit to facilitate effective communications and help build a consensus between the parties.

Mediation is a voluntary process and can only be successful if both parties agree to fully engage in the process. Mediation is totally confidential leaving no ‘paper trail’ or permanent record. If no agreement is reached, the parties can still retain the right to go to court. The mediation proceedings will not be disclosed or used at a court hearing.

Answered by: Alan Ehrlich

When should I mediate?

For many people, their first introduction to mediation is when a court remands their case to a mediator. By this time, attorney’s fees have piled up, tensions are high, and relationships are broken beyond repair. This makes coming to mutually agreed upon settlement that much more difficult.

If mediation is started in the early stages of the dispute, each party is more likely to be willing to move towards a settlement. To answer the question, the earlier mediation is started the better.

What does it mean that mediation is voluntary?

It means that you cannot be forced to mediate your dispute. A successful mediation requires that each side negotiate in good faith and look forward to a mutually acceptable solution. If both sides cannot come to an agreement, the mediation can be terminated. No one should feel that they are being pressured into the mediation process or into an agreement that they are not comfortable with.

Is mediation expensive?

Mediation is generally the least expensive means to settle a dispute, far less costly than going to court. Mediation does not require the comprehensive and redundant information gathering that each of the party’s attorneys conducts to ‘win’ for their client. Many dispute mediations can be completed in one or two days, while divorce mediations can take a little longer.

Since mediation is totally voluntary, either party can stop it at any time, so if there is a limited budget, and that agreed upon dollar amount is reached, a decision can be made to end the process.

Is A Mediation Agreement Legally Binding?

While a court settlement is automatically legally binding, a mediated settlement may or not be depending upon the situation. If a court case has been remanded to mediation and a settlement is reached, the attorneys involved will file the final mediation agreement with the court in order dismiss the case.

If the dispute was brought to mediation without filing a court case, the final agreement, once signed by all involved parties is considered a contract and if the contract is breached, the other party may take the offending party to court and sue for breach of contract.

If desired and agreed upon by both parties, the final mediated settlement can be entered into the court making it a legally binding agreement.

In general, mediated settlements have a very high rate of success because of the nature of mediation – where both sides negotiate and agree – rather than settlements that are imposed by a judge or jury.

What is the difference between mediation and litigation?

The phrase “I’ll Sue You!” has become all too common in our society. Say something bad about me… I’ll sue you. Plant flowers 12 inches over my property line… I’ll sue you. Make too much noise in the apartment above me… I’ll sue you.
The threats are not always carried out, but the damage to an ongoing relationship can be severely damaged. And for those threats that are brought forward the costs can be outrageous both in real dollars and time. Im most instances, mediation or dispute intervention can save hundreds, if not thousands of dollars, and hundreds of hours of valuable time.

The differences between mediation and litigation are considerable. The key differentials are process and cost.
Litigation generally requires each side having its own set of attorneys. Facts must be presented to the court, so a process of discovery in instituted. This means collecting and sharing all pertinent information regarding the case – any paper trail, electronic stored information (ESI), financial data, property maps, agreements, etc. It may require that each side create and respond to interrogatories (detailed questionnaires created by the opposing attorneys) and it could mean that each side deposes the other (having to answer questions and provide evidence under oath). Each of these steps could cost thousands of dollars.

Once all of the evidence is collected, the case will go before a judge or a jury. The lawyers from each side will argue why their client is in the right and the other side is wrong. After all the material is presented and the arguments made, the judge or jury will render a judgment – usually pronouncing a winner and loser. Win or lose, a lot of time and money has been spent. Sometimes, the loser is even required to pay the legal fees of the winner.

Mediation and dispute resolution, on the other hand, do not create winners and losers and no one hands down a judgment. The goal is to have the parties resolve the dispute themselves – with the help of a neutral third party – by listening to each other, sharing their story, presenting possible solutions, and resolving their dispute in a way that can be accepted by both sides.
By working together towards a mutual solution, key relationships are maintained, settlement can be reached inexpensively and without delay. A benefit to all concerned.

What are the benefits of mediation over litigation?

The mediation process works to eliminate the “win-lose” atmosphere that is part of litigation and many disputes.

  • Mediation generally produces results faster than litigation through the courts.
  • Mediation is less expensive. There are no retainer fees and you control the expenditures.
  • Mediation is voluntary for all parties. It is private and confidential and not part of the public record.
  • Mediations are conducted in safe informal settings. There are no court reporters or recordings of the sessions.
  • Mediation allows for creative problem-solving. The parties control the outcome of the mediation.
  • Mediation allows for open communication and can help improve on-going relationships.
  • Mediation promotes understanding and compromise and eliminates the “I win, you lose” atmosphere and outcome of a courtroom proceeding.

Answered by Robert McDonnell

What are the differences between mediation and arbitration?

Both mediation and arbitration are conducted outside of the court system, but there are a few key differences between the two. The first, and most important, is that in mediation the parties involved are in charge of, and responsible for the decisions made and the structure of the final settlement agreement. The mediator does not have the authority to make or impose any decision without the expressed approval of both parties. In arbitration, those key responsibilities are transferred to the arbitrator, who listens to both sides and then acts like a judge by handing down a decision on how the dispute is to be settled.

Additionally, an arbitration is typically more like a trial with more a more formal structure, calling of witnesses, formal arguments and the presentation of various pieces of evidence. The cost of arbitration can be considerably more than that of mediation.

FAQs About Divorce Mediation

I already talked with an attorney and he/she doesn't recommend mediation. What should I do?

Many attorneys don’t like mediation because, after all, they will lose the large legal fees that they earn from divorce litigation. Ask your attorney the following questions and then judge for yourself about mediation.

  • How much will it cost for your services per hour?
  • How many hours will most probably be spent by you by the end of the divorce?
  • Will my divorce go to a trial?
  • If the divorce goes to trial, what happens if I don’t like the judge’s decision?
  • Will it make a difference in the decision as to which judge gets assigned to the trial?
  • What percentage of divorce cases actually go to trial?
  • If the case doesn’t go to trial, does that mean that I will settle the case?
  • If my spouse’s attorney is as good as you are, doesn’t that mean that the settlement will be reasonable for both parties?
  • Why shouldn’t I use a mediator for settling the issues?
  • If I use a mediator, can I still use your services to get advice during the process and to review the final agreement? If the answer is no, why not?
  • How many months will the whole process take?
    • If I go to trial?
    • If I use your services instead of a mediator?
    • If I use your services and those of a mediator

Answered by Carl Cangelosi, JD, APM

Won't I do better if I get a lawyer and litigate?

It is always possible if everything goes perfectly that you would do better litigating. However, you can never guarantee at the end of the litigation process that you will like the result since it may be imposed by a court. And by that time, you will have spent a lot of time and money and created a very hostile relationship with your former spouse.

In mediation, you know that the result is fair and reasonable to you because you voluntarily entered into it. Besides the time and money you have saved, you have established a good working relationship with your former spouse so that you will have fewer problems in the future dealing with issues about your children, etc.

Answered by Carl Cangelosi, JD, APM

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