WHAT IS MEDIATION?
Mediation is a way for people to settle disputes such as divorce, separation or lawsuits without having to go to trial. In mediation a neutral third party - the mediator - helps the disputing parties look for solutions that work for them. Mediators do not decide cases or impose settlements.
The mediator's role is:
- to help the people involved in a dispute communicate and negotiate with each other in a constructive manner
- to assist all parties to gain a better understanding of the interests and issues important to each other
- to find a resolution based on common understanding and mutual agreement
What are some styles of mediation being used?Facilitative or Interest Based Mediation
In facilitative or interest based mediation, the Mediator structures a process to assist the parties in reaching a mutually agreeable resolution. The Mediator asks questions; validates parties' points of view; searches for interests underneath the positions taken by parties; and assists the parties in finding and analyzing options for resolution. The facilitative Mediator does not make recommendations to the parties, give his or her own advice or opinion as to the outcome of the case, or predict what a court would do in the case. The Mediator is in charge of the process but the parties are in charge of the outcome.
Evaluative mediation is a process modeled on settlement conferences held by judges. An evaluative Mediator assists the parties in reaching resolution by pointing out the weaknesses of their cases and predicting what a judge or jury would likely do. An evaluative Mediator might make formal or informal recommendations to the parties as to the outcome of their issues. Evaluative Mediators are concerned with the legal rights of the parties as well as their needs and interests. Their evaluation is based on all these principles and the legal concepts of fairness. Evaluative Mediators will often caucus in separate meetings with the parties and their attorneys practicing "shuttle diplomacy". They help the parties and attorneys evaluate their interests and their legal position and the costs vs. the benefits of pursuing a legal resolution rather than settling in mediation. The evaluative Mediator structures the process and may directly influence the outcome of mediation.
Transformative mediation is based on the values of "empowering" each of the parties as much as possible and "recognition" by each of the parties of the other parties' needs, interests, values and points of view. The potential for transformative mediation is that any or all parties or their relationships may be transformed during the mediation.
Transformative mediation's goal is to transform the conflicted relationship of the parties into cooperative co-existence.
What style of mediation do we use at Keyte and Associates?At Keyte and Associates we subscribe to all of the processes that might best lead to resolving disputes between parties. We are not interested in being pure theorists or ardent supporters of one theory over another and believe that successful mediators mediate on a continuum between facilitative/interest based styles and evaluative styles depending on the circumstances and the wishes of our clients.
Our philosophy and our standards have evolved from practical experience and are based on what has worked for clients in the past; what we believe to be most effective in helping our clients achieve a resolution. We will always use practises that best fit the client's situation and their expectations for dispute resolution. This allows for a full consideration of our clients situations and expectations.
What are the benefits of mediation?Mediation can help parties resolve disputes quickly, saving time and money.
Generally the best solution to a problem is one worked out by the parties themselves. Mediation offers the parties a chance to craft a solution that meets their needs and many people find mediation more satisfying than a trial because they play an active role in resolving their dispute rather than having a solution imposed by a judge.
The mediation process is informal and completely confidential. Parties in mediation may speak more openly than in Court and many people find mediation a more comfortable and constructive process than a trial.
In situations where the parties must have an ongoing relationship such as parenting after divorce, mediation is helpful because it promotes cooperative problem-solving and improved communications.
Where is the mediation held?The mediation may be held at any location that is convenient and acceptable to the parties and the Mediator including the Mediator's office, the office of one of the parties or the offices of one of the lawyers.
What happens during a mediation session?The parties, sometimes with their lawyers, and the Mediator are the only ones who have a right to be present at the mediation. No one else may attend without all parties' consent. What is said remains private and any information arising from the mediation cannot be used outside the mediation for any court purpose.
Before the mediation session begins the Mediator explains the mediation process and reviews the terms of the mediation which may have been set out in a written Agreement to Mediate.
Although mediation is an informal process the Mediator structures the discussion. All parties have a chance to present their side of the story, to explain what is important to them and to ask questions. One of the main functions of the Mediator is to help the parties explore settlement options. The Mediator may meet separately with each of the parties (called caucusing) either before the session begins or during the session to assist in the process.
How long is the mediation session?The length of a mediation session and the number of sessions required depend on a variety of factors including the complexity of the matter, how well the parties have prepared for the mediation, how far they have progressed in settlement discussions prior to mediation and whether the mediation process is working. It is possible that the Mediator may end the mediation earlier than the allotted time if all matters are settled or if the Mediator concludes that the process is not being helpful for the parties.
What if the issues do not settle at the mediation?A mediation is considered successful even if the parties do not settle their dispute provided they gain a better understanding of the other side's position, or if they have narrowed the issues, or settled some of the issues, or if they have agreed on a process to resolve issues later in the proceedings. Matters that have been filed in Court that do not settle at mediation continue through the court process or may move on to Arbitration.
What is the Mediator's responsibility after the mediation session?The Mediator may provide a written report on the outcome of the mediation if there is a Court requirement to do so or if the parties have agreed that the Mediator is to provide a written Mediation Report. Often these reports are the starting point for the lawyer's drafts of Settlement Agreements. The report is a without prejudice report and nothing in it can be called into evidence at trial.
Who pays for mediation?All parties share the cost of the mediation sessions unless they have agreed otherwise prior to mediation. Parties pay mediators directly for their services and most mediators take a deposit prior to commencing mediation.
How can parties prepare for mediation?To get the maximum benefit from mediation it is important to think about the case realistically and creatively. Before the mediation begins parties who have lawyers should work with their lawyers to prepare for a session that will be cooperative and productive.
Parties might consider these questions in preparing for mediation:
- What is the best result each party can hope for and what is the worst result that could happen?
- What is each party trying to accomplish by mediating? What is really important to each of them?
- What are the main concerns of the other parties and how can they be addressed?
- Are there any solutions to the dispute that can reconcile the interests of all parties?
- Are there any limits on each party's ability to settle?
- What will happen if the case does not settle at mediation?
What is a lawyer's role in mediation?Generally lawyers are present only at commercial mediations although at some separation and divorce mediations lawyer will attend.
The lawyer's role may include:
- preparing and submitting the Statement of Issues
- preparing the client for effective participation in the mediation session
- providing legal and strategic advice during the mediation process
- participating in the mediation process in good faith
- preparing legal agreements from a Mediation Report
How will lawyers prepare their clients for mediation?Good lawyers are aware that the parties participate directly and actively in mediation and that the process is not adversarial. To prepare you for mediation your lawyer should:
- describe the mediation process and what will happen at the session
- explain what is expected of the client
- remind the client that the objective of the mediation is not to "win", but to reach a satisfactory resolution
- discuss mediation strategies
- ensure that the client or client's representative has authority to settle
- discuss the costs, risks and benefits of not reaching a settlement
How can lawyers assist clients during the mediation session?Throughout the session the lawyer can help the client by gauging the client's reactions and suggesting breaks where appropriate. During breaks in the session the lawyer can discuss any observations about the progress of the session and advise the client on negotiation tactics and possible compromise solutions.
What happens after the mediation session?Where the issues are settled completely or partially the lawyers will prepare and review any agreement reached to ensure that it meets the client's interests and is legally binding. Where certain issues remain outstanding, the lawyer will analyze the discussions that took place during the mediation and provide the client with advice concerning the next steps which may include:
- consideration of the need for further mediation or other alternative dispute resolution processes such as Arbitration
- preparation for trial
- compliance with any undertakings or agreements made at the mediation
- consideration of settlement options that were explored but not adopted at the session.