Mediation

Mediation can be about nearly any subject. Commonly, people mediate the issues in their divorce or separation. However, some engage in mediation to keep their marriage together — marital/relationship mediation. In marital mediation, you can mediate issues that arise in your primary relationship with the goal of reaching common understandings and thereby sustaining and enhancing that relationship. Businesses often mediate disputes with employees, customers, and other businesses. Organizations and governments participate in mediation. Mediation is a way to help preserve a relationship in spite of a disagreement, rather then end a relationship due to escalating conflict. Mediation can work very well for many people, particularly where the parties do not feel they need continuous involvement from their attorneys. 

Mediation can be started at any time in the life of a dispute. However, as a general rule, the sooner the better. Disputes rarely become less intense and can spread unnecessarily if allowed to fester and grow over time. Delay in starting mediation until after taking steps using formal legal procedures may be mistake from a dispute resolution perspective, not only because of the added expense, but also because it delays laying the foundational pieces on which to build a better settlement. The sooner the foundation can be laid, the better. There are some situations where a delay in going to court can have repercussions, and it is best to get legal advice to learn whether your situation falls into that category.

The Mediation Process

The structure of the mediation is provided by the mediator. Mediators use processes and methods that suit the personality and style of the particular mediator, and will likely adapt the process to suit the particular dispute. For example, the mediation process for a divorce mediation will probably look very different from a mediation about a labor dispute between a union and the employer, or a mediation between a community and its police department. Similarly, a mediation conducted by a retired judge will likely look quite different from a mediation conducted by a mental health therapist. In spite of the differences, there are some common principles that apply to all mediations.

First, the mediator is a impartial party who does not and will not advise or advocate for any party or parties. By rigorously maintaining impartiality, a mediator is able to help both parties work towards resolution. Second, mediation is voluntary. There is no requirement to engage in or continue in mediation. Third, a mediation is private and confidential.

The mediation process can be broken into several phases that are commonly followed. The first phase is the establishment of ground rules. The ground rules are intended to provide a common understanding of expectations to allow the mediation session(s) to proceed productively. The second phase is intended to provide the mediator with information about the dispute and the parties. The third phase involves breaking the discussion/disputes into parts for discussion. Depending on the mediator, this may be done formally — such as by preparing an agenda — or informally, by either transparently discussing the next steps or simply launching in, with the mediator then parsing the topics as may be needed. The next phase includes discussing the topics. The nature of the dispute will significantly impact the form that the discussion may take. The final phase will be verifying any agreement that is reached, including reality-testing as to how the agreement will work in the real world and placing the agreement in some form of writing.

Major Mediation Styles

Not all mediators mediate the same way. There is a wide variety of styles and techniques. Mediation styles can be broken out into a number of major categories. In some respect, these categories are a bit artificial, because many mediators combine more than one of these styles in their mediations. However, it is still useful to categorize, because the differences may be important to you as you consider the style of mediation that may work best for you. If one style of mediation does not seem to fit you, another style of mediation might.

“Facilitative” or "Interest Based" mediation is a widely practiced form of mediation. Facilitative mediation uses techniques to facilitate a discussion between the parties with the goal that they will come to a resolution that is right for them, independent of legal rights. Facilitative mediation is a process that focuses on needs, interests, and goals of the parties instead of technical legal rights, and will almost always have the parties together in the same room with the mediator. Facilitative mediation will often assist parties by having them work on communication and problem-solving skills during the mediation session. Facilitative mediations (and most mediations other than settlement conferences) will primarily be face-to-face meetings, with the parties and mediator in the same room.

“Transformative” mediation can look similar to a facilitative mediation, and is designed to also help the parties reach a deeper resolution through insights about what motivates them and others. Transformative mediation requires a developed and difficult to acquire skill-set by the mediator. Perhaps for that reason, it is practiced by relatively few mediators. It is perhaps most suitable for people who want to grow and learn lessons from their conflict beyond reaching agreement.

“Narrative” mediation focuses on the meanings that we make out of underlying conflicts in preparation for negotiations. Narrative mediation can address senses of entitlement more effectively than other mediation methods. Narrative mediation is less widely employed than some other methods because it requires specific training. Often, much of the initial work in a narrative mediation is done caucus-style, in individual sessions with the mediator and each party.

“Evaluative Mediation” is a model often practiced by lawyers or retired judges who conduct mediations that are modeled after litigation experience. This is the style of mediation that is also used by most industry-specific mediators. This process looks and feels quite different from any the processes described above. In an evaluative mediation, the mediator (or settlement conference master) evaluates the legal and factual merits of the positions under either a legal framework or an industry-practices framework, and shares his/her perspective of how the matter should be resolved. The mediator/settlement conference master will then typically try to forge agreement based on the settlement conference master's views. This process is also frequently called a settlement conference. In an evaluative mediation or settlement conference, the parties often sit in separate rooms, with the “settlement conference master” traveling from room to room to convey perspectives and offers. 

When talking with your lawyer about “mediation,” be sure to inquire what your attorney means. It is surprising to many people that a large number of lawyers have no formal training in dispute resolution beyond familiarity with laws and court procedures. Therefore, they are generally not very familiar with various mediation models other than evaluative mediations/settlement conferences. When lawyers talk about “mediation”, they will often be referring to a settlement conference, because that is the model that many lawyers use to settle their cases. A settlement conference is essentially a process that feels a lot like litigation, which is where most lawyers are comfortable because of their education. At settlement conferences, lawyers generally try to demonstrate how their evidence and legal theories are better than the other's, thereby trying to sway the settlement master and the other side towards their position. Settlement conferences are most useful in cases where the law is the most important consideration. Settlement conferences are often undertaken only after preparing for litigation, because it can be difficult to make legal arguments, show evidence, or make a convincing claim of what might happen in court without that type of preparation.

When considering the different mediation styles for your divorce, remember that the purpose of the law is not to resolve private disputes. There are a number of purposes for the law, including providing a somewhat predictable outcome when a judge has to make decisions for someone else. Predictability is important for several reasons, including maintaining the legitimacy of the court. In a private dispute, most people are not concerned about the impact on the next case, as a court would be. Most people in a dispute are interested most in resolving their own dispute based on their own standards.

The Mediation Style of J. Mark Weiss

Unlike many lawyer-mediators, J. Mark Weiss uses a blended approach towards mediation, and focuses more on the facilitative-transformative-narrative end of the spectrum. Mark has been trained in all the modalities described above, and tries to remind parties of the “big picture” — the impact of the dispute and of proposed solutions on the parties and others, to help people arrive at a good solution. Mark works with the parties to discuss the information they have on which to make decisions, helps with generating options for resolution based on the information, and guides a discussion towards resolution.

Mark may co-mediate a case with other mediators with specific skill sets for particular cases. Co-mediation (two mediators in the same room) can add additional effectiveness.

When acting as a mediator, Mark cannot give legal advice. Because preparing legal papers is a form of legal advice, parties will need to retain their own attorneys to advise them and to prepare the necessary final paperwork to implement the agreements reached in mediation. For parties who do not have an attorney, we can provide referrals to attorneys who support the mediation process.

Because of the importance to all parties that their mediator be impartial, Mark will ordinarily not mediate cases where he has individually consulted with a party as an attorney.

Limits of Mediation

Like all dispute resolution processes, mediation is not the right process for everyone. While opinions may differ, we feel that most mediation styles are generally most suitable for parties who have up to a moderate level of conflict. We feel that Collaborative Divorce (with skilled Collaborative Law practitioners) may often be more suitable for parties who have a higher level of conflict, because of the additional support that is inherent in Collaborative Law cases. Similarly, a Collaborative Divorce may be more process than parties need as their level of conflict becomes lower, and mediation may more suitable for those parties. Ultimately, however, the decision is very personal and based on personal inclinations and preferences.

Mediation may not be appropriate if either or both parties are unable to tolerate sitting in the same room together, are unwilling or unable to consider the other party's point of view, or are unwilling to freshly explore different options to see which one(s) might be best suitable.

Attorney Involvement in Mediation

Because the mediator is impartial (sometimes called a "professional neutral") and therefore cannot provide the parties with legal advice, it is important for mediating parties to have legal counsel who can provide that advice. Commonly, mediated agreements will have legal repercussions, and it is important for the parties to understand those repercussions. No one wants agreements to have unintended consequences. The Law Office of J. Mark Weiss, P.S., recommends that every party to a mediation consults with independent legal counsel before finalizing any agreement. If parties do not have counsel and need a referral, we can provide the names of some independent attorneys with whom parties may wish to consult to prepare for mediation and before signing any binding agreement. Parties are free to consult any attorney.

Generally, divorce lawyers are not present or needed during mediation sessions (except for settlement conferences — see above). Lawyers are welcome to attend mediations with prior arrangement. Prior arrangement is needed to ensure that there is no surprise and that both parties have an equal opportunity to have counsel present during a mediation session.

Disputes Mediated by the Law Office of J. Mark Weiss, P.S.

We provide mediation, generally face-to-face in the same room, for a wide array of family law and other disputes, including:

• Property and debt division;
• Spousal maintenance;
• Parenting plans;
• Child support;
• Domestic partnerships;
• Living-together arrangements;
• Prenuptial agreements;
• Marital and relationship mediation;
• Family mediation (family disputes);
• Partnership and business disputes;
• Inheritance disputes; and
• Most other types of disputes, whether between people, organizations, businesses, or government.

For More Information About Mediation

If you are interested in learning more about the divorce mediation or other mediation process, contact the Law Office of J. Mark Weiss, P.S., or inquire by email to info@mark-weiss.com.