Mediation is an alternative dispute resolution (ADR) method during which you and the other party involved in the legal issue negotiate the outcome with the assistance of a neutral third party. While arbitration, another ADR method, uses a hearing similar to a trial, mediation is a negotiation process. You and the other party are only guided by the mediator, who does not make any final decisions.
Mediation is often used during family law matters, like child custody and visitation disputes, and it is growing increasingly popular in other areas of the law as well. It can be a helpful and less contentious process than resolving everything in court. However, it is not for everyone. Always speak with an attorney before agreeing to mediation. Or, if mediation is required, call an attorney for guidance through the process.
Why choose mediation?
For people who aren’t interested in litigation but are also concerned about navigating legal issues without the assistance of a professional, mediation offers a viable middle ground. A legal issue between people who know one another and are not necessarily opposing are well-suited to alternative methods like meditation: This includes divorce and family law issues, as well as trust and estate planning or business and employment disputes.
“An increasing number of couples divorcing don’t hire lawyers at all,” says Susan Hansen, an attorney practicing collaborative divorce and mediation and the founder of the Family Mediation Center in Milwaukee. “The numbers in Wisconsin are estimated around 70 percent. That is a common phenomenon nationwide, that ‘do it yourself’ approach to divorce. Even couples who could afford lawyers are choosing not to hire lawyers. They are concerned about fees, whether lawyers will escalate conflict, so a very large number don’t hire lawyers at all. So part of the benefit of mediation is that as a neutral lawyer a mediator can work directly with the couple together to provide education and guidance to help them reach agreements and navigate the legal process.”
Finding a mediator
You and the other party must hire a mediator. How a mediator is chosen depends on a number of factors. If you are being forced to go through mediation due to court order, then your court system may provide mediators. If you don’t have court guidance, you can utilize associations like the American Arbitration Association’s Mediator Finder tool. One or both of you may be required to pay for the mediator’s time.
You can hire a mediator from the outset, bring on a mediator to finalize the terms of your agreement, or contact an impasse mediator after you and the other party have already attempted to reach a decision through traditional representation. The cost of mediation will vary, as with all representation, by the mediator’s level of experience and location. The average session tends to cost between $100 and $300 per hour.
The mediation process
Mediation is far less formal than court, yet there is a typical process, according to Harris Schlecker Law. The mediator will usually conduct introductions. Then, each side gets to offer a statement regarding the problem. Next, the mediator may conduct a conversation to gather information. This may be done with each party in the room or with the parties separately. Then, the parties come together to begin negotiating. While arbitration focuses on one hearing, mediation can consist of multiple meetings with the other party and mediator. The more contentious or complicated the legal issue, the more meetings you may need.
The mediator’s level of involvement will change depending on the nature of the case and the parties involved. “Some couples need most of their conversation, negotiation, communication to happen with the mediator present,” Hansen says. “For those couples there can be multiple meetings. Other couples get some level of education and they’re able to do some of the discussion and decision making on their own. It’s variable depending on the needs of the couple.”
The mediator is there to keep the conversation on track and rein it in if things become heated, attorney Edward Ahrens said on Mediate.com. The mediator will listen to both sides, relay information between both of you, reframe issues, point out unrealistic expectations, and facilitate a compromise. As Ahrens puts it, a mediator may give you an unwelcome “reality check,” yet the purpose is always to help you and the other party reach a fair settlement. Since the mediator is a neutral third party who has no stake in the situation or the outcome, they may be able to see solutions you and the other party can’t.
How a lawyer helps with mediation
Having a lawyer can be essential to properly preparing for mediation. You need to be fully aware of your rights and options before you sit down to negotiate. An attorney can also advise you on how to negotiate and what types of mistakes to avoid. During mediation, you can have your lawyers present, however, you and the other party will do most of the talking. Your lawyers may have a word or two with you if they want to remind you of your rights and options. The American Bar Association provides more information on an attorney’s role during mediation. After mediation, your lawyer can ensure the settlement is adhered to by the other party, and if necessary, can take steps to enforce the contract or court order.
If neither you nor the other party is interested in hiring a lawyer for yourselves, you can still get the benefit of legal understanding from an attorney specializing in mediation. This attorney mediator will ensure that both parties have a clear understanding of the legal and financial process they are undertaking, so that the results in the end will not be unbalanced in favor of the less ignorant party.
There are no specific types of mediation outcomes because the practice is used for all manner of legal issues. The possible outcomes depend on your legal matter.
If mediation is taking place within a lawsuit, then once you and the other party negotiate a resolution, the mediator will put the settlement in writing. You both review it, and when it is entirely agreed upon, it is presented to the court for approval. If mediation is entirely outside of the court system, then the resolution may take the form of a binding contract between you and the other party.
While it may be tempting depending on the issue you are facing to attempt to navigate legal matters on your own or to use guidelines found on the internet, improperly handling your case can set you up for more complicated (and expensive) issues down the line. Litigation and its fallout are more common among parties who didn’t take proper measures at the outset, particularly in divorces. If you are determined to stay out of court, meeting with an attorney to educate yourself on the law, or hiring an attorney mediator to make sure you and the other party are in accordance with the law, are two options available to you.