Mediation

Mediation is a confidential process in which people gather to resolve their disputes with the assistance of an impartial third party (the “mediator”).  The mediator facilitates communication and negotiation between the parties, helping them identify the issues they wish to address; share their perspectives about the dispute and how they have been impacted by it; develop and consider options for resolution; and voluntarily reach solutions or agreements that are mutually beneficial. 

At NWLRC, we offer two types of mediation to meet our client’s needs:

FACILITATIVE MEDIATION

Facilitative mediation is a process in which a mediator assists the parties in reaching a solution of their own creation.  The goal of this type of mediation is to facilitate negotiation between the parties.  The approach is interest-based, meaning the goal is a win for each person.

The parties will meet jointly with the mediator.  Communication will be relaxed, but direct, and the parties control both the timing and the nature of offers.  Parties may talk about their feelings, perspectives, and expectations.  The mediator guides the participants to make decisions that are fully informed and do not attempt to influence the outcome of the matter.

As the participants in mediation often do not have an attorney representing their interests, they are free to consult with and/or hire an attorney to advise them on a particular legal issue or to draft or review legal documents. 

Facilitative Mediation can be beneficial and productive in avoiding going to court or can be used prior to, and at various stages of litigation.

In facilitative mediation, the mediator encourages each party to identify and discuss the reasons for a particular issue.  When the parties talk about their needs there is a greater potential for problem-solving and a greater range of solutions.

First Session: The mediator explains the mediation process, the parties review and sign the Mediation Agreement.  The mediator lays out the ground rules so the mediation will be experienced in a safe, respectful environment.

Subsequent Sessions: Each party has an opportunity to present their perspective on the dispute and how they are affected by it.  When a party speaks, the other party is to listen, understand and recognize areas of agreement.  The parties are to attempt to understand the other’s perspective, even though they may not agree with it.

Identify Issues: The Mediator helps the parties identify the issues they will address in mediation.  Mediations involving divorce involve the same issues (i.e., division of marital property and debt; child and spousal support; parenting arrangements). 

Determine Needs and Interests: In Facilitative mediation, the mediator encourages the parties to identify and discuss their feelings regarding a particular issue.  When parties talk about their needs, there is potential for joint problem-solving.

Options for Resolution: The parties produce solutions to the issues that have been identified.

Consider, Evaluate and Negotiate: Once the parties and mediator are satisfied that they have exhausted all possibilities for resolution of the issue, they determine the most preferred outcome.  The parties may consult with professionals such as lawyers, counselors, psychologist, and CPA’s when appropriate.

Tentative Agreements: The mediator will record agreements as they are made.  These agreements are changeable until embodied in a signed ??? (agreement.)

Homework In-Between Sessions (Information Gathering): Information gathering, such as conducting an inventory of property, obtaining documents, or consulting with financial, legal, or other professional experts, is accomplished between mediation sessions.

Parties usually worn on “homework” assignments independently between sessions.  Assignments may include organizing financial documents, preparing budgets, researching community resources (e.g., childcare, caregiving) or consulting with mutually selected CPA’s, financial advisors, etc.

The Agreement: One the parties have addressed and resolved all the issues, the mediator drafts their agreements into a detailed Memorandum of Understanding or, in the case of clients mediating a divorce or relationship dissolution, a Property Settlement Agreement.  There is a follow-up session to review the document together to ensure that the agreements are accurately set forth.

ADVANTAGES

Some of the advantages of Facilitative Mediation are that it encourages constructive communication and mutual understanding between the parties, enhancing the possibility of a healthier relationship in the future.  This can be especially beneficial when children are involved.  It provides the parties an opportunity to address concerns that may not be addressed by legal solutions.  The greater opportunity of a mutually beneficial agreement reduces the odds of a win/lose outcome.  Conflicts can be resolved early on, prior to any heightened fears or entrenched positions developing.

Finally, the parties control the costs by using one trusted “neutral” legal professional.

“SHUTTLE” OR COURT
MANDATED MEDIATION

The goal of this style is to garner an agreement through compromise that is fair to both parties.  Decisions are law-based as opposed to interest based, meaning each issue resolved is a “win/lose”.  The conversations involve the facts involved and the law. 

Each party is represented by an attorney who will also attend the mediation session.

You may receive opinion from the mediator about the legal strengths and weaknesses of each party’s argument or settlement proposal and may also make recommendations for settlement.

The parties meet separately with the mediator who acts as a “go-between”, relaying information between the parties and decides what information is most helpful to settlement.

This type of mediation is generally though to be most effective after the completion of discovery.

ADVANTAGES

Shuttle mediation provides a familiar setting for lawyers who are more comfortable addressing the facts, evidence, and the law rather than emotion.  It is also particularly effective when there are highly divergent interpretations of fact or law, when there are distributive issues, limited resources, and a creative solution doesn’t seem apparent.  This type of mediation also can provide insight into how a judge might view the legal strength and weaknesses of a party’s position and can often be completed in less time than other types of mediation.

Joint sessions involve the parties engaging in face-to-face discussions.  The mediator does not take sides or give legal advice.  The role involves facilitating communication between the parties, organizing discussions, encouraging problem-solving and emotions. 

Throughout the process the mediator helps the parties reach agreements on issues.