Mediation

What is Mediation?

Mediation is a method for negotiating a marital settlement agreement out of court, using a neutral third person to manage direct negotiations between the parties. In mediation, the parties retain decision making power instead of turning it over to an outside authority such as a judge or arbitrator. Usually the parties speak for themselves instead of through lawyers. (If you would prefer to have an attorney acting as your negotiation spokesperson, see Cooperative Divorce.) The mediator facilitates the exchange of information and documentation, identifies the issues, and moderates the discussion to keep it on track and constructive. The mediator educates the parties about general principles of statutory or case law but does not give legal advice in the adversarial sense.

What Happens in the Mediation Process?

The parties to the mediation meet together with the mediator moderating. In the first stage of this process, the mediator supervises the voluntary exchange of information and documents and identifies and reframes the issues by restating them in terms of the underlying concerns and objectives of each party. In this restatement of the issues, the mediator edits out any negative emotions of anger and blame and helps the parties to focus on understanding each other’s point of view without expecting either party to give up his or her own position. The mediator helps each party to prioritize his or her concerns and objectives and to compare them with the priority list of the other party.

Next, the mediator helps the parties to generate multiple options for settlement. The mediator will also add options which the mediator knows from experience other people to have used to resolve a similar conflict. Then, the mediator assists each party in assessing the pros and cons of each option and analyzing which option meets most of that party’s priority needs and goals. Finally, the mediator asks each party to consider in which areas he or she might be able to compromise, while still obtaining enough of his and her objectives and feeling that he or she is not giving up anything essential.

Each party in agreeing to mediate in this model has, from the outset, committed to pursue a result which not only takes care of himself or herself, but also is reasonably fair to the other party. When each party sees and hears the other party sincerely attempting to analyze his or her own proposals in terms of mutual fairness, a cooperative environment develops. Each party is then inclined to be more flexible and able to compromise on some items, allowing the other party to get a reasonable amount of his or her priorities met, provided that the compromising party is also getting the same result for himself or herself.

Even though the pie that the parties are dividing up usually does not get bigger, the solutions are more customized to the personal goals of each party, and each party feels that a “win-win” solution is achieved because their approach to each other is mutually fair instead of “win-lose”. This amicable approach does not entirely eliminate the tension inherent in the process of competing for scarce assets. But it does keep the negotiation process rational, courteous, and ethical, and it allows the parties in the process to affirm their dignity and obtain a practical, satisfactory resolution.

Mediation is a highly efficient method for working through a legal dispute. The time spent in communication and organization at the beginning of the mediation process is more than offset by the saved time and money which would have been expended in the traditional adversarial system to conduct formal legal discovery, develop trial strategies, and fight in court.

What Types of Cases May Be Mediated?

Mediation may be used to resolve any type of legal dispute. Faith Jansen (also dba Family Law Mediation Center) mediates:

Does Mediating Allow Me to Consult Privately With My Own Legal Counsel?

Mediation allows and is compatible with either or both parties having an outside confidential consulting relationship with an attorney acting as an evaluative legal counselor, to help the party analyze legal concepts as seen from the standpoint of a court, formulate proposals for mediation based on interest-based bargaining principles, and review a rough draft of a proposed written settlement agreement before the party signs it. Either party may see a consulting attorney periodically between mediation sessions from the outset of mediation, on an as-needed basis during the mediation, or only at the end to review a rough draft of a proposed settlement agreement. If there has been ongoing court litigation and the parties want to engage in mediation, the parties (and their court attorneys, if any) must agree to suspend the litigation process while mediation is in progress.

Who Writes Up the Mediation Agreement?

Faith Jansen, as mediator, will write up a proposed settlement agreement, as a rough draft, when all the issues to be decided have been discussed in mediation sessions. That rough draft will be provided, with no rush, to enable each party to carefully review it and confirm that it expresses his or her intended agreement. Either party may ask for corrections or changes to the rough draft, and proposed changes may result in additional mediation sessions or three-way telephone conferences between the parties and the mediator. Either party may see an outside consulting attorney for a private one-on-one appointment to go over the rough draft of the proposed mediation agreement without the other party being present.

How Does the Mediation Agreement Get Made into a Court Judgment?

Faith Jansen’s legal staff will arrange for the filing of all the pleadings (legal forms) necessary to obtain an uncontested judgment without either mediation party having to physically appear in court. Her office will prepare and file a “neutralized” Petition, which will inform the court that a mediation is underway and will not check any adversarial boxes on the court form. This Petition will contain a statement that reserves the right of the Petitioner to amend that form to make litigation requests, if mediation does not produce a settlement agreement made into an uncontested judgment. The Petition, and all other court forms filed by Faith Jansen’s office, will indicate that the parties are self-represented unless one or both parties has a consulting attorney who is also that party’s attorney of record in court. Faith Jansen, as a neutral negotiation facilitator, is not an attorney of record for either party and does not act as a legal representative for either party against the other, either in or out of court. Her office provides paralegal services to file the legal forms for the convenience of the parties, only so long as both parties agree on proceeding. If either party asks for the process to halt, all action by Faith Jansen’s office is immediately stopped.

How Long Will Mediation Take?

The question,”How long will it take?” is universally asked, and any answer must always be preceded by a disclaimer stating that the only true answer is that it depends on the case and one cannot predict in advance. The best response to the concern of time, which relates to the concern of the cost of the process, is to supply this information: Mediation sessions are generally scheduled for two hours in length every one to two weeks, although they may occur more or less frequently. Unless the parties’ situation calls for a different order of considering the issues, Faith Jansen will approach them in the following order:

The time spent in mediation discussing each of these categories may take more or less than a two hour mediation session. When one category is covered, the discussion proceeds to the next, until the two hour mediation session is over. While it is not unusual for each of these categories to take a full two hour session or longer, not all cases have all of these issues, and some cases move through them more quickly than others. In addition to time spent in mediation sessions, Faith Jansen will charge for time spent writing the settlement agreement, which generally takes three to six hours, depending on the number and complexity of issues. She will spend another hour putting together and reviewing the package of supporting declarations needed for submitting the settlement agreement to the court as a proposed uncontested judgment. A few hours of secretarial time are also charged over the course of the mediation, for typing, overseeing the filing of legal forms, and following up with the case at each stage to make sure that it moves forward expeditiously. Photocopy and court courier expenses add a little bit more to the final cost. More questions on this subject may be asked at a pre-mediation consultation (Mediation Orientation) appointment. To determine the hourly rate for Faith Jansen, contact our office.

How Do I Select a Mediator?

Couples may set up pre-mediation consultation appointments with different mediators to see whether they have more rapport with, or like the style of, one mediator better than another. To get information on how to set up a pre-mediation consultation with Faith Jansen, click here: Appointments