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FAQs

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What is Mediation?

What is mediation and how long are mediation sessions?
What can I do to prepare myself for mediation?
What if I’m afraid of my child’s other parent and we’re going to mediation?
Do I need an attorney?
Can my attorney come to mediation?
How is mediation different from legal litigation?
What kind of disagreement can be mediated?
What does mediation do?
What are the direct benefits of mediation?

What is the process?

What goes on at a mediation session?
How do the parties and the mediator work together?
How long does mediation take?
If I use mediation, will I need to go to court?
How do I get a mediation started?
Is mediation confidential?
Am I required to sign anything at mediation?
Can non-parties be present at mediation?
Can the mediation be audio taped?

How about arbitration?


What is arbitration?
What is difference between mediation and arbitration?
What are the benefits of arbitration?


What is mediation and how long are mediation sessions?

Mediation is a confidential process. Mediators are highly trained
neutrals who assist parties in creating plans that best serve the needs
of the parties involved. In family law cases, mediators assist parents
in making their own plans for their children by keeping the focus on
the children’s needs, the safety of all involved and helping to
establish better communication between the parents. These mediation
sessions are generally two to four hours in length.

In drug and alcohol dependency cases, mediators assist the parties in
working out a plan that best supports the addict’s needs. Parents,
social workers, all involved attorneys, and other participants are
invited to participate in the mediation. Orientation takes place at the
time of the mediation session, which is generally 2 ½- to 3-hours long.
At the end of the mediation session the parties report directly back to
the appropriate monitoring agencies and request that the Court make
their agreement an order or set a date for a hearing if no agreement is
reached. In elder care or estate planning mediation or coaching
situations the cases proceed along highly individualized paths,
however, the involved parties are always advised in advance as to the
coach or mediators opinion about his estimate of the time commitment.

What can I do to prepare myself for mediation?

Do whatever you can to separate your feelings about your well-being
from your feelings about others. Take into consideration the things
discussed during orientation. Bring at least two different proposals
about how your issues for mediation should be handled. Be prepared to
listen to other’s ideas so that you can have a discussion about What might work for everyone. Make a list of any specific concerns so that
they can be addressed in putting together the plan.

What if I’m afraid of my child’s other parent and we’re going
to mediation?

Anyone who has had a history of violence or intimidation with their
child’s other parent has the right to meet with the mediator without
the other parent being present. This is true for any kind of mediation.
You also have the right to bring a person with you who makes you feel
more comfortable (a support person). The support person may sit with
you in the mediation session but is not allowed to speak. The support
person can be asked to leave if he or she causes a disruption or breaks
the rules of the mediation session. In some situations, the mediator
can meet with each parent on separate days or at different times of the
day so that they are not both at the courthouse at the same time.

Do I
need an attorney?

This is a personal decision and, often, a financial decision. Many
people represent themselves, but the parties should make it clear if
they choose to have an attorney present. That decision needs to be
reported to all the parties prior to the commencement of the mediation
or unnecessary disruptions and continuances may occur.

Can
my attorney come to mediation?

Yes, your attorney may participate in the mediation session. However,
the mediator generally meets first with the lawyers and then spends
most of the mediation session meeting with only the parents. Your
lawyer may wait for you to finish your discussion so that you can
discuss any questions you might have or you and your attorney can
decide that you call him or her with questions as they come up during
the mediation.

How Is Mediation Different From Legal Litigation?

In legal litigation, the parties retain attorneys whose focus is to
prepare a case which will result in the best decision for their client
by a judge. Often, litigation includes an adversarial approach
demeaning the other party. In litigation you never know what the
outcome will be until the case is ruled upon. There are no guarantees
that anyone will come out as the ‘victorious party’. In the long run,
everyone pays a price in litigation, which usually takes longer and
take place in a public setting. Mediation is based on the
principle that people are capable to resolve their own disagreements if
given the right support. Generally, it is non-adversarial and the
parties agree that all information will be openly shared in a safe,
neutral environment. It is a voluntary and confidential process. Either
party can withdraw or choose not to participate at any time. The
mediator does not judge who is right or who is wrong, but works with
parties to help them arrive at a solution to satisfy their interests.
No tape recordings are made and no court reporter is present. The
mediator will not reveal anything discussed during the mediation to
anyone other than the participants. The mediator does not represent
either party. Generally, the mediation does not include lawyers except
in a consulting or reviewing capacity. However, in some cases,
mediation includes both parties and lawyers.

What Kind Of Disagreement Can Be Mediated?

Generally any kind of disagreement can be mediated. The exceptions are
class action suits, cases involving punitive damages, and lawsuits
which require statutory, judicial or regulatory case law to resolve.
Whether it is a civil dispute involving hundreds of thousands of
dollars, a workplace dispute, a divorce, or a family matter, the
parties can resolve it without resorting to traditional adversarial
litigation. Even after litigation has been started, mediation can be a
practical way to settle the matter in a less expensive and timely manor.

What does Mediation do?

Mediation usually focuses on the underlying interests of the parties,
and not their positions. Mediation is used to:??• Define complaints,
problems and disputes ?• Discover options and solutions ?• Manage
resolution process in a ‘win-win’ manner?• Facilitate mutually
agreeable settlements ?• Formulate guidelines and policy ?• Record
agreement with written documentation ?• Helps prevent future
disagreements

What Are The Direct Benefits Of Mediation?

Mediation usually provides a quicker, more cost effective and more
satisfactory outcome than legal litigation. It may take months and
sometimes years to resolve a disagreement in court, mediation can be
paced according to the parties’ needs and schedule. Mediation is
voluntary and requires both parties agreement to the make a final
resolution. Therefore, parties are more satisfied with the outcome than
with a decision made by a judge or jury. This results in a higher
likelihood of compliance with the mutual agreement since parties are
usually more likely to comply with a solution to which they agreed. In
mediation, the parties are able to customize the resolution agreement
to meet their needs rather than being constrained by the limited
options available in court. Most important, parties are more likely to
preserve an amicable relationship in the future.

What Goes On At A Mediation Session?

Within a mediation session, two types of meetings can occur. First, the
joint session is held. This is when everyone is present; parties, their
representatives and lawyers meet with the mediator and outline the
basic issues, interests and positions of each side. The second type of
meeting is called caucus. A caucus is a private and confidential
meeting between the mediator and one of parties and their attorney(s).
In mediations, both types of meetings occur as it helps overcome
positional obstacles and helps maintains a forward progress toward a
mutually agreeable resolution.

How Do The Parties And The Mediator Work Together?

The normal process is for the parties and mediator Come together, at
scheduled sessions determined by the parties. Essentially mediation
runs like a guided negotiation between the parties, with the mediator
facilitating the communication. Most meditations generally run by the
following five-stage format: ??Stage 1: Establishing the Process: The
mediator and the parties agree to a number of guidelines they will
follow in the mediation. This usually includes only allowing one person
to speak at a time, treating all parties with respect, and
confidentially.??Stage 2: Exploring Positions and Interests: The
parties usually make their initial statements regarding their
disagreement and define what they hope to resolve in the mediation.
Stage 3: Developing Solutions: Each party discusses their interests
and possible solutions to resolve their disagreement. ??Stage 4:
Finalizing A Resolution: The parties assisted by the mediator create a
solution mutually agreeable to both parties. ??Stage 5: The Written
Agreement: Once agreed on, the solution is formalized in a written
resolution agreement.

How Long Does Mediation Take?

The length of mediation is determined by a variety of factors including
the complexity of the issues, the complexity of the relationships, the
number of participants, the cooperation of the parties, and the
readiness of the parties to explore a mutually satisfying resolution.
While some mediations are completed within a half-day session, it can
take several half and full-day sessions to reach a mutually agreeable
resolution. The each parties control the length of the mediation.

If I Use Mediation, Will I Need To Go To Court?

In specific cases, for example, in divorce you need to file in court
the divorce paperwork. If a mutually agreeable resolution in mediation
to all of the property, financial, custody, parenting and other issues
and the court accepts your settlement, it is unlikely that you will
have to make many, or any, court appearances. Please consult with a
lawyer prior to mediation on your local Judicial System requirements.

How do I Get A Mediation Started?

There are several international, national and local mediation
organizations and associations. Some are non-profit and others are
for-profit. In business matters, the first starting step is to have an
Alternative Dispute Resolution clause in your written agreements and
contracts that establish the procedures and structure for handling
disputes. In personal and community matters, most agreements are simple
and verbal. If there is no written or discussed agreement between
parties on how to handle disagreements, please contact an ADR
Professional.

Is mediation confidential?

Mediation is a private process, not open to the public. For the most
part, what happens in the mediation is confidential. There may be
certain limitations to confidentiality depending on state law or other
factors. Make sure you talk about this issue with your mediator before
you begin mediation. If the case is filed in court, you may be required
to disclose the terms of the agreement you reach. Speak with your
lawyer or mediator about this.

Am I required to sign anything at mediation?

Yes. If the parties can agreement on a path to resolution then it must
be reduced to writing for the benefit of all parties involved and for
clarity if enforcement of any provisions is sought later.

Can non-parties be present at mediation?

So long as all parties agree, non-parties can be present. If there is
an objection by one party or the other non-parties cannot be present
unless that non-party is essential to the decision making process.

Non-parties can come for moral support but they will be asked to remain
outside of the joint meetings. If parties decide to separate,
non-parties are permitted to join while meetings occur in separate
caucuses.

Can the mediation be audio taped?

No. Mediation sessions are confidential and absent agreements which are
intended to be reduced to a Court Order, nothing that occurs in
mediation may be used or commented upon in Court. Accordingly, there is
no reason to record what occurs in mediation. The mediator will provide
a written explanation (Memorandum of Understanding) of any agreements
reached in mediation. If no agreements are reached, the mediator will
also provide a written explanation of that to the parties and their
lawyers.

What is Arbitration?

Arbitration is an Alternative Dispute Resolution process whereby a
person chosen as the arbitrator resolves the disagreement between
parties. Arbitration is similar to a court trial, with several
exceptions:

1) The arbitrator (or panel of arbitrators) make(s) the decision called
an “arbitration award:

2) The arbitration does not take place in a courtroom.

3) The arbitration award is binding. With rare exceptions, there is no
right to appeal.

4) Arbitration is not a matter of public record. The proceedings are
private and confidential. Generally there is not a court reporter or
written transcripts.

5) Discovery or the process by which lawyers generally prepare their
cases is extremely limited and subject to agreed upon guidelines.

6) The rules of evidence are relaxed so that the parties have a broader
scope, more expanded opportunity to tell their stories;

7) With very few exceptions, it is much less expensive than legal
litigation.

8) An arbitration time frame is substantially less than that of
litigation and going to trial.

9) No jury. The Arbitrator(s) maintain neutrality and conflicts of
interests.

10) Generally, all paperwork and evidence presented are destroyed.

What Is Difference Between Mediation And Arbitration?

Mediation is a voluntary alternative dispute resolution process. All
parties must consent to participate in good faith and work toward a
mutually agreeable resolution. Mediating parties are not bound to
resolve their dispute. However once a resolution is reached, it can be
made binding if the parties decide to draft a contract called a
settlement agreement. Mediations are not “decided” in favor of one
party or another; rather, the mediator simply facilitates the
negotiation process. The parties decide their own outcome.

Arbitration is a non-voluntary alternative dispute resolution process.
Unlike mediation, a knowledgeable, independent, and impartial third
party is empowered to make a decision. The arbitrator hears the
disagreement between one or more parties and after considering all
relevant information renders a final decision in favor of one of the
parties. Arbitration decisions may be either binding or non-binding,
depending on the terms of the arbitration agreement. Binding
arbitration decisions may be confirmed by a court and carry the same
significance as a court judgment.

What Are The Benefits Of Arbitration?

The advantages of arbitration include:

- Timely resolution and closure to complex issues

- Lower costs than litigation

- Privacy and confidentiality of issues and parties

- Quick process avoiding court back-logs

- Parties maintain more control over the proceedings than litigation

- Opportunities for Parties to express their interests without
objections

- Limited case precedent and legal procedures

- Ability to select arbitrator(s)