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What is a mediation?
Mediation is an informal process where an impartial third party helps disputing parties find mutually satisfactory solutions to their differences. Mediation can resolve disputes quickly and satisfactorily, without the expense and delay of formal investigation and litigation.
Mediation proceedings are confidential and voluntary for all parties. Mediation typically involves one or more meetings between the disputing parties and the mediator. It may also involve one or more confidential sessions between individual parties and the mediator.
Mediation is neither therapy nor a “day in court.” Rather, mediation provides a safe environment for people to air their differences and reach a mutually agreeable resolution. The mediator’s role is to manage the process through which people resolve their own conflict, not to decide how the conflict should be resolved. Mediators do this by assuring the fairness of the mediation process, helping the parties communicate with each other respectfully, and maintaining the balance of power between the parties.
A mediator is NOT a judge. The mediator remains neutral towards the parties. That means the mediator cannot give advice to either party or act as the lawyer for either party. The mediator will, however, ensure that all parties have ample opportunity to become fully informed about their legal and financial options.
What are the benefits of mediation?
- Lower cost: Mediation is typically far less costly than other types of dispute resolution, especially fighting it out in court. (Learn more about the cost of divorce mediation.)
- Timeliness: When you use mediation, you have more control over the process. You do not need to wait for lawyers or court calendars. The process can move as quickly or as slowly as it takes for you and the other party or parties to arrive at a resolution. (Learn more about how mediation works).
- Confidentiality: If your dispute ends up in court, the proceeding is a matter of public record and your private matters are aired in an open courtroom. In a mediated divorce, your negotiations are confidential. Many people, including those with significant assets, prefer to keep their private affairs private.
- Emotional satisfaction: People who work together to arrive at a mutually acceptable agreement are typically more satisfied with the result than are people who litigate their dispute. After all, who knows your family and your problems better – you or a Massachusetts judge who has never met you before?
- Protection of relationships: Taking a case to court is an adversarial process that often leads to hurt feelings that can last decades. Mediation is a process where the parties work together to decide the issues and create solutions to those issues. If you are going to be co-parenting children together, or continuing to deal with an elder’s issues together, or you want to maintain good relations with business associates, protecting the goodwill that remains between you will be important.
- Agreements that are crafted to the unique needs of the parties: Each situation is unique to the parties involved in it. In a divorce, for instance, while Massachusetts family courts do have guidelines that they follow to ensure divorce agreements are fair and reasonable, there are still many issues in parenting and property division that can be negotiated between the two parties in unique ways.
When should I use mediation?
You can use mediation to solve any dispute between you and another person or business, even if you disagree and cannot get along. If a dispute is particularly contentious, the mediator can work with each party separately to find areas of agreement and build on them.
Mediation has been used successfully in many different types of disputes, including:
- Child Custody
- Business to Business
- Probate and EstatePartnerships
As long as both parties to a dispute are willing to discuss a mutually satisfactory settlement, almost any issue can be mediated to reach a solution that benefits both parties.
Mediation will not work, however, unless all parties involved in the dispute agree to mediate. Mediation also cannot take place if a court has issued a restraining order prohibiting one party from making direct contact with another party to the dispute.
How successful is mediation?
Mediation is extremely successful. When the parties decide they want to end their dispute and are willing to work together to achieve a just resolution, they almost always reach agreement. Even when parties find it difficult to speak with one another and are not sure they can work together, mediation can be successful. Even if a final agreement is not reached, the mediator can help the parties narrow the issues in dispute and better understand the position of the other side.
Researchers generally report higher rates of compliance with mediated agreements, when compared to agreements reached in the adversarial process. This includes parenting schedules and payment of child support and spousal support.
How does mediation compare to litigation?
Mediation is faster, cheaper, and less stressful than litigation. Because the parties control the outcome, it is also more likely to result in an agreement that both parties are willing to abide by in the future.
Faster: Most disputes can be mediated in just a few sessions. Unlike a court hearing, the mediation sessions are scheduled at a time and place which is convenient for all concerned. Sessions can be spread out over time to allow for obtaining documents or gathering information, or they can be scheduled only a day or two apart.
There is no waiting around for your case to be heard as there is in a courtroom. The mediation can begin as soon as all parties are present.
Cheaper: Mediation is cheaper for many reasons:
- There is no time wasted at the courthouse
- The parties meet face-to-face so there is no need to pay a lawyer to communicate with the other party.
- Because the parties meet face-to-face, they can frequently get to the heart of the issues more quickly.
- The parties frequently cooperate in exchanging information, thus avoiding the need for lengthy “discovery” proceedings.
- The parties can jointly choose and share the cost of any accountants or other professionals, rather than paying for a professional for each party.
Less stressful: Legal proceedings can be extremely stressful. The parties must appear in public and intimate issues may be exposed. The parties are often subjected to a “grilling” by opposing counsel. Furthermore, the parties are not in control of the situation. The lawyers and the judge are in control.
Mediation is more like an informal conversation between the parties. The mediation is private and confidential. Even if you lose your cool or have intimate issues to discuss, there is no one there to see or hear except the other side and the mediator. The parties control the outcome of the mediation. If they cannot agree to a mutually satisfactory solution, the mediator will not impose a solution on them as a judge would.
What is the mediator’s role?
The mediator is an impartial facilitator. The mediator does not take sides or decide who is right or wrong. The mediator does not impose a solution on the parties. The mediator’s job is to listen respectfully, help the parties identify and narrow their issues, and help the parties identify and evaluate possible solutions to their dispute.
What happens in a typical mediation?
After both parties agree to mediate and sign a Mediation Agreement, the mediator meets with them together. There may be one or two or multiple sessions, depending on the complexity of the issues involved and the emotional state of the parties. Sometimes, the mediator might ask one or the other party to leave the room while s/he discusses particular issues of concern with only one party.
At the conclusion of the mediation, the mediator may draft an Agreement which incorporates the resolution reached by the parties. In divorce cases, that Agreement can be submitted to the Probate Court at the divorce proceedings.
Do I need an attorney in mediation?
You may or may not want to bring an attorney to the mediation sessions. That is up to the parties. In most instances, the parties do their own negotiations during mediation. They will then each hire an attorney at the end to review any Agreement before they sign it.
“If there is any great secret of success in life, it lies in the ability to put yourself in the other person’s place and to see things from his point of view – as well as your own.”
~ Henry Ford