About Mediation
1) What kind of cases can be mediated?
Most civil (non-criminal) disputes can be mediated, including business, contracts, leases, small business ownership, and divorce, such as custody of children.
You may also want to consider mediation if you get into a dispute with a neighbor, roommate, spouse, partner, or co-worker. Mediation can be particularly useful in these areas because it is designed to identify and cope with divisive interpersonal issues not originally thought to be part of the dispute. Mediation is designed to look at and fix the bigger picture, it's a far better way to restore long-term peace with your neighbors, family members , or co-workers than going to court
2) 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, and the readiness of the parties to explore a mutually satisfying solution. While some cases are completed within a few hours session, it can take much longer. It is possible to provide a reasonable estimate of the time needed to resolve a problem once the details of a situation are known.
As for divorce mediation, where a couple aims to settle all the issues in their divorce -- property division, alimony, child custody, visitation, and support etc -- generally requires half a dozen or more mediation sessions spread over several weeks or months.
3) How is mediation different from arbitration?
A mediator normally has no authority to render a decision. It's up to the parties themselves -- with the mediator's help -- to work informally toward their own agreement. It facilitates understanding and clarification between parties and aims at rebuilding relationships.
An arbitrator, on the other hand, conducts a contested hearing between the parties and then, acting as a judge, rends a legally binding decision. Arbitration resembles a court proceeding: Each side calls witnesses, presents evidence, and makes arguments.
4) What are the benefits of mediation?
Mediation provides the parties in a dispute control over the outcome, creating greater satisfaction and an increased likelihood that the final agreement will be carried out. Secondly, it introduces a structured process into the conflict so that parties don't have to think so much about how the conversation is happening. Mediation can be a transformative process that helps preserve or even improve relationships. Mediation can also save time and money for an organization by avoiding the high cost of litigation.
5) What are the stages of mediation?
While mediation is not as formal as going to court, the process is more structured than many people imagine and anything said in the meeting is confidential and without prejudice. A typical mediation involves the following stages.
- Intake Meeting – the mediator will meet with the parties separately to collect information and assess whether the case is suitable for mediation.
- Sign Agreement to Mediate – the mediator will prepare an Agreement to Mediate for all parties (including the mediator) to sign before the joint meeting.
- Joint Meeting – at the beginning of the joint meeting, the mediator will explain his/her neutral and impartial role, the process of mediation as well as the guidelines with the disputing parties. The mediator will also encourage each side to work cooperatively toward a settlement.
- Parties’ Opening Statements -- each party will have an equal chance to tell their version of the situation as they see it. When one person is speaking, the other is not allowed to interrupt.
- Agenda Setting -- the mediator, after hearing the disputants’ statements, summarizes their issues and help them draw up an agenda. The parties will then prioritize the issues.
- Joint Discussions and Separate Meetings -- the mediator will facilitate the parties to develop mutually acceptable solutions to meet their needs in the particular situation. However, if parties reached an impasse or the mediator finds it fit, the mediator will call for separate meetings with each party to further explore underlying issues and options. Parties can also call for separate meetings, if required.
- Settlement Agreement - when a solution acceptable to all parties is reached, a Settlement Agreement recording the outcomes is prepared by the mediator or the parties’ representing lawyers. Once this agreement is signed by the parties involved, it becomes a legally binding contract. If no agreement was reached, the mediator will review whatever progress has been made and advise every one of their options, such as meeting again later, going to arbitration, or going to court.
6) Is mediation confidential?
Mediation is a confidential process, meaning that the mediator will not disclose any information or material growing out of the mediation without the expressed consent of the parties. In instances where a work supervisor or other professional experts to know the outcome of mediation, the mediator will work with everyone involved in advance of the mediation to determine what and how information will be disclosed.
The disputing parties also sign an agreement to keep all contents of the mediation confidential.
7) What are the risks of mediation?
The risks of mediation are very few. Because mediation is voluntary, either party or the mediator can call a halt to it at any time. Neither party is pressured or coerced into accepting any agreement they don't support.
8) How does the mediator decide the outcome?
The mediator does not decide the outcome. Mediators help parties reach their own decisions.
9) When is the best time to mediate?
It is usually never too early and never too late. If you are already involved in a court case, you can mediate any time up until the judge makes his/her decision providing both parties agree. If you have not yet started legal proceedings, it may be worth considering whether mediation could help at this point before you incur legal fees.
10) Are there some cases that should not be mediated?
Certainly, if one or both of the disputing parties is/are not willing to mediate.
Mediation may also not be the best choice if:
- Disputing parties are looking for a “win-lose” outcome
- It involves broad matters of public or government policy
- Parties have ulterior motives such as wishing to use mediation to gather more information
- There is extreme power imbalance that cannot be balanced by the mediator
- One party is suffering from an emotional or psychological disorder
In family mediation, the followings are not suitable to mediate:
- Cases that include allegations of child abuse or neglect
- Cases that include allegations of domestic violence
- Cases in which one or both parents are unable to negotiate for themselves at the mediation
- Cases in which the court has a reasonable belief that one or both parties’health or safety would be endangered by mediation
11) If I choose mediation, will I still need a lawyer?
In most mediation cases, you won't need a lawyer right there with you. This is because the parties are trying to work together to solve their problem -- not trying to convince a judge or arbitrator of their point of view -- and because mediation rules are few and straightforward. However, you may consult with a lawyer before or anytime during the mediation to discuss the legal consequences of possible settlement terms. You may also ask your lawyer to comment on the condition of any agreement you reached.
12) What happens in Business or Commercial Mediation?
The type of mediation process depends upon whether attorneys are involved or the parties are proceeding on their own.
When lawyers are involved:
Usually the attorneys for the parties select and agree upon a neutral mediator. They provide him/her with a memorandum which lays out the nature of the dispute, the issues to be resolved and the positions of the parties. They also provide relevant documents, such as contracts and financial statements.
The attorneys and the mediator agree on what type of process to follow in the actual mediation session:
- Should the parties themselves actually negotiate or should attorneys alone do the talking or is there to be a combination of these strategies.
- Should the parties meet together in a joint session or should they be kept separate with the mediator shuttling between conference rooms
Whatever the format, it is the role of the mediator to work with the parties to bring out and understand the underlying needs and interests behind their negotiating positions and to explore options, both monetary and otherwise, that satisfy those needs.
Whether in separate or joint sessions, the mediator and the attorneys work towards reaching mutually satisfactory solutions.
13) What is the role of attorneys in Business or Commercial Mediation?
The attorney's role is to help create workable options that result in win-win solutions. Their role is not to be adversarial or aggressive.
14) What if we don't reach agreement?
In mediation, all discussions and materials, with very few exceptions, are confidential. If no mediated agreement is reached, evidence of the mediation discussions, mediation materials and any draft mediation resolutions will not be admissible in any court or other adversarial proceeding.
15) What do I do if I want to mediate?
You will need to find a qualified mediator with appropriate training and experience. You and the other parties can set up a joint meeting to interview the mediator, or interview the mediator separately, and ensure that all of you feel comfortable and trust that the mediator can assist you in reaching an agreement.
16) How can I become a mediator?
To become an accredited mediator, you need to attend a 40-hour mediation course. Upon completion of the course, you will have to pass assessments which compose of two role-play examinations. Some accreditation bodies require you to do a written examination. After you gained your accreditation, it is recommended that you observe a few real cases, and then start co-mediating with experienced mediator before you do mediation cases on your own.
g2g provides accreditation mediation course and prepping courses/sessions to help candidates equipped for the mediation accreditation assessment. Please contact us for details.