How does the mediation process work?
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What types of family conflicts are appropriate for mediation?
Mediation is effective for addressing just about any family conflict, in both traditional and non-traditional family settings, whether the disputes involve matters of law or are interpersonal (e.g., family business working out sibling rivalries).
When does family mediation NOT work?
Mediation is not right for everyone or for every situation. Both parties should be committed to resolving their disputes cooperatively - without bullying and posturing - and candidly. More traditional means of negotiation may be more appropriate if:
- There is a history of physical, sexual or psychological abuse.
- One party is fearful for his/her safety.
- One party is unable to articulate his/her own needs and negotiate effectively on his/her own behalf.
- One party does not trust that the other party will disclose all significant, pertinent information (such as assets) for fully informed decisions.
Can we mediate by email or phone if we live in different states?
I will agree to mediate a conflict by email or telephone in limited circumstances when parties, who have previously met with me, are at an impasse on a pressing issue and a face-to-face mediation cannot be scheduled right away.
I have heard that mediators have different styles of mediating. What is your mediation style?
My mediation style is based on the facilitative, problem-solving model in which the mediator's role is to help the parties work out a mutually acceptable solution to their dispute.
I also use other approaches that do not fit squarely into the facilitative model. This flexibility gives me the ability to address matters such as party dynamics and impasse more effectively. The parties always retain complete control of the final outcome.
How do I prepare for family mediation?
Preparing yourself for mediation is always a good idea. You want to be in the best position to negotiate with the other party to achieve an optimally satisfying resolution for each of you. Ask yourself:
- What issues need to be addressed?
- What are the outcomes that you would like to see?
- Why would you like these outcomes? Which needs, expectations, concerns or desires would you satisfy with this outcome?
- What do you think is the other party's preferred outcome.and why?
- What options can you think of that might resolve your disagreements in a way that you genuinely believe will work for both of you?
I'm concerned that I won't be able to stand up for myself if there is a lot of arguing. Will the mediator be able to make sure that I am heard?
The mediator sets the tone for the negotiations and actively intercedes to discourage intimidation, threats or bottom-lining. It is up to the mediator to try to provide a "safe place" for all the parties to be heard.
I am too angry with my ex and do not want to mediate face-to-face. Can we stay in separate rooms and mediate?
Sometimes it is just too difficult for people in conflict to be in the same room with one another. In these instances, a caucus style ("shuttle mediation") may be more appropriate. Generally, however, shuttle mediation is not recommended when the parties intend to have an ongoing relationship.
How does the mediator get the parties to agree?
A good mediator is skilled at acknowledging, active listening, re-framing, questioning, and identifying common ground. She will ask probing questions to encourage parties to consider new perspectives, develop empathy for the "other side," and re-examine their own motivations, defenses, and fears.
Will the mediator try to persuade one of us to accept a particular settlement?
Absolutely not! Although the mediator helps the parties to evaluate their options, it would be improper for her to indicate a preference for any particular solution. The parties' ability to craft their own agreements without coercion from a third party is fundamental to mediation.
How do you ensure that an agreement is fair?
Of course, none of us want an unfair outcome when our legal rights and personal interests are at stake. But "fair" means different things to different people. A mediator should not try to impose her idea of a "fair" outcome on the parties. Her role is to ensure that the mediation process is fair - that each party feels that he or she has been heard and supported and that each party has had sufficient opportunity to be fully informed.
Will the mediator give me legal advice?
Mediators may provide you with legal information. But even when they are attorneys, as I am, mediators are prohibited from giving legal advice to clients in mediation. To do so would compromise their impartiality. And it would create a conflict of interest since an attorney may advise only one of the parties to a dispute.
Do I need an attorney to represent me?
I always encourage the parties to consult with attorneys early in the mediation process (if not right before!) and at different stages in negotiation, to ensure that they are well informed. After consulting with their attorneys, parties should have a reasonable understanding of their legal rights and obligations, an awareness of how similar cases have resolved before the particular judge, and an appreciation of the financial and emotional costs of litigation. See Why Should I Want an Attorney When I Have a Mediator?
May I bring my lawyer to the mediation sessions?
Although lawyers ordinarily do not attend facilitative mediations, they certainly are welcome to attend the negotiations provided the parties are in agreement and both sides are represented.
What will happen if we don't settle?
If your case has been referred to a mediator by a court, it will return to court without penalty. In other cases, parties may use any other dispute resolution method, such as arbitration or litigation. One more advantage of mediation: you may be able to come to agreement on some issues so that you will have limited the scope - and costs - of the other chosen dispute resolution process.
Is a mediated agreement legally enforceable?
An agreement reached in mediation that has been signed by the parties and approved by the court will have the same enforceable effect as a court decree. And research has shown that people are more likely to comply with agreements they helped create than with orders imposed by the court.
Shouldn't an attorney review our mediated agreement?
Yes, it is definitely advisable that you have a family lawyer review the Memorandum of Understanding before it is signed to avoid unanticipated legal and economic consequences arising out of the agreement. I can provide you with referrals to family law attorneys who support the mediation process.
How long will our mediation take?
There is no prescribed number of mediation sessions for any one conflict. Most family mediations take anywhere from two to six sessions over a period of several weeks or a few months.
We need to resolve our conflict quickly. Can we speed up the process?
The conflict took time to develop and is not likely to disappear overnight. However, there are things you can do to speed up the resolution. Ask the following questions: How motivated are we to settle? Are we willing to listen to and try to understand one another's points of view in good faith? How well do we communicate? Can we resolve any issues directly between sessions? If you answer positively, chances are good that mediation will move forward more quickly.
How much will it cost?
Mediation should cost a fraction of what it would cost for you to arbitrate or litigate your dispute - even when you retain your own attorneys and use the services of other professionals such as CPAs, mental health professionals and appraisers. Please contact Rina M. Goodman for a fee schedule.
Why is mediation less costly than litigation?
Mediation is usually much faster than litigation. The time it takes for you to arrive at an agreement is within your control, so that you are not paying a mediator for endless hours of his or her time. Moreover, you and the other party are encouraged to share responsibility for the mediator's fees (often much less than attorney fees), as well as the fees of impartial, jointly retained experts including attorneys. [See Why Would I Want an Attorney When I Have a Mediator?]
In litigation, on the other hand, each party pays his or her own attorney to respond to motions, attend hearings, interview witnesses, take and defend depositions, and converse with opposing counsel - as well as paying for expert witness reports, court reporter fees and transcripts. And there are the additional financial and emotional costs of the inevitable appeals.