Conflict Resolution
Parties meet with the mediator and issues are discussed with an eye toward mutual agreements on resolving the issue(s). Mediations will either be held with all parties in the same room or in separate spaces. Sometimes mediations begin together and then the mediator moves to meeting with each party separately.
It means that whatever you say in mediation (whether it is when you and the mediator are talking alone, or when you and the other party are talking with the mediator), will not be repeated outside the mediation by the mediator or any party present. If the mediation is not successful and you go to court or another legal proceeding, the mediator cannot be subpoenaed or required to testify in court, nor can records or paperwork from the mediator be used in the court proceeding.
Parties are encouraged not to share information discussed during mediation outside of the mediation, and bringing up these details in front of a judge is frowned upon. The confidential space of mediation allows greater transparency during the mediation from all parties and increases the chances of reaching a mutually acceptable resolution.
This means that both parties must agree to mediate. If one party does not want to participate, then the mediation cannot occur. Either party may end the mediation at any time, for any reason.
The mediator also reserves the right to withdraw or terminate the mediation if they determine, in their sole discretion, that the parties have reached an impasse, that the problem-solving process has stalled, or that the issues cannot be resolved in mediation. Because mediation itself and any agreement resolving your dispute is voluntary, the mediator cannot and does not guarantee that an agreement will be reached or that the dispute will be resolved in mediation.
This means that both parties must agree to mediate. If one party does not want to participate, then the mediation cannot occur. Either party may end the mediation at any time, for any reason.
The mediator also reserves the right to withdraw or terminate the mediation if they determine, in their sole discretion, that the parties have reached an impasse, that the problem-solving process has stalled, or that the issues cannot be resolved in mediation. Because mediation itself and any agreement resolving your dispute is voluntary, the mediator cannot and does not guarantee that an agreement will be reached or that the dispute will be resolved in mediation.
If you and the other party are unable to come up with an agreement in mediation, then you can take other action such as filing a claim in court (or return to court if you have already initiated a complaint) or take the matter to arbitration. That is your choice. The mediator will not tell you what to do and will not force you or require you to do anything. The mediator does not provide legal advice or encouragement to either party.
Mediation gives you and the other party the chance to resolve the dispute yourselves. Most people are more satisfied with resolutions that they develop themselves. In general, mediation is less costly and faster than arbitration or litigation. It can also reduce stress and emotional strain by helping the parties reach an agreement and be able to move on.
Mediation is an efficient and cost-effective process for helping parties reach agreements and resolve disputes. It is a non-adversarial approach that takes place outside the legal arena in a private and confidential setting. Mediation aims to identify needs, air concerns, and solve problems. Mediation provides a number of benefits, including:
- Creative, comprehensive, and workable solutions
- Cost efficiency
- Stress reduction
- Confidentiality
- Demonstration of good faith
- Control of decision-making
- Long-lasting agreements
You may be represented by a lawyer but do not need an attorney to participate in mediation.
You may bring your attorney to the mediation, but counsel is not required. If you have an attorney who does not participate and a written agreement is created during the mediation process, you may take the agreement to your attorney for review before it is finalized. You may also contact your attorney via telephone at any time during the mediation. Mediators do not provide legal advice or encouragement to either party.
This will depend on the specifics of the situation, but we often up to 3 or 4 hours for mediation. This time may be shorter or longer, or additional sessions may be needed. Being prepared for your mediation with relevant paperwork and an understanding of the issues increases productive use of time.
Both parties have to reach and sign a written agreement for the process to be legally binding. If one or both parties are unsatisfied with the outcome, or do not agree to a solution, then they are free to use other means to resolve their dispute.
Many mediations proceed as follows:
Stage 1: Mediator's opening statement. The mediator makes introduction, explains the goals and rules of the mediation, and encourages each side to work cooperatively toward a settlement.
Stage 2: Parties’ opening statements. Each party is invited to describe their perspective on the dispute, including its impact and otherwise. The mediator might ask for general ideas about resolution at this point. While one person is speaking, the other is not allowed to interrupt.
Stage 3: Joint discussion. The mediator might encourage the parties to respond directly to the opening statements, depending on the participants' receptivity, in an attempt to further define the issues.
Stage 4: Private caucuses. The private caucus is a chance for each party to meet privately with the mediator. The mediator will go between the parties to discuss the issues and identify and exchange proposals for resolution. The mediator continues this process as needed during the time allowed. These private meetings typically comprise the guts of mediation.
Stage 5: Joint negotiation. After caucuses, the mediator might bring the parties back together to negotiate directly, but this is unusual. The mediator usually doesn't bring the parties back together until a settlement is reached or the time allotted for the mediation ends.
Stage 6: Closure. If the parties reach an agreement, the mediator will likely put its main provisions in writing and ask each side to sign the written summary of the agreement. If the parties didn't reach an agreement, the mediator will help the parties determine next steps, including whether it would be fruitful to meet again later or otherwise continue negotiations.
The goals of mediation are for the parties to:
1. share feelings and reduce hostilities,
2. clear up misunderstandings,
3. determine underlying interests and concerns,
4. find areas of agreement, and
5. incorporate those areas into solutions devised by the parties themselves
Occasionally agreements arrived at through mediation are compromises, but often they are more creative and customized agreements which meet the specific needs of the parties. Mediation helps parties to "expand their thinking", to consider broader alternatives meaningful to each party, to exchange interests not known before, to become aware of issues valued by each other, and to develop "win/win” solutions.
Both parties are expected to mediate in good faith, which means that they will sincerely attempt to resolve the issues at hand by participating fully and genuinely in the search for fair and workable solutions. It also means that the parties will cooperate with the mediation process by remaining courteous throughout the session(s) and otherwise refrain from personal attacks and angry outbursts, whether verbal or via text/email during mediation.
No. Neither party is giving up any rights by agreeing to mediation. By agreeing to participate in mediation, parties are are agreeing to try and reach an agreement with the other party about the issues.
Mediation may be right if:
- Both parties are willing to participate in mediation
- Both parties want to make decisions about a problem instead of asking a judge to make those decisions
- The parties are capable of communicating with each other
- Cannot testify in court about what happened in mediation
- Does not make decisions for the parties
- Does not offer legal advice
- Does not assign blame for what has already happened
- Facilitates and manages the process
- Keep the mediation sessions private and confidential
- Help the parties communicate
- Listen to the parties and help them find solutions to disagreements
- Help the parties explore all the possible options and solutions for the issues
- Focus on what needs to happen next to solve the problem
To inquire about fees for our services, please contact us at gabe.clark@awservices.com
We can provide services, including mediation, both in person or remotely, making it accessible to everyone.