What is Mediation?
Mediation is a voluntary process, through which the parties remain in complete control of all settlement decisions. A neutral (the mediator) assists the parties in reaching an agreement. Mediation is less formal than a court hearing and requires the active participation of both the attorney and client.
The Process
I generally conduct my mediations in two different styles: one for civil cases (such as personal injuries, auto accidents, business or contract disputes and employment cases) and one for family law cases (such as divorce, modifications, paternity, adoptions and grandparents’ rights).
Civil Cases
Most civil case mediations begin with all parties and their attorneys in the same room. Usually the mediator will start the session by explaining the process. Next, plaintiff’s counsel will detail the factual and legal basis of the claim. The parties may participate in the opening statement by indicating how the situation has affected their lives. The decision to participate is one that is made by the attorney and the client. There is no requirement that a party speak during any part of the opening session.
After the plaintiff’s attorney has presented his/her case, defense counsel and/or the defendant may respond. The information that is presented is often the same that would be heard at a court trial, and sometimes affords the first opportunity for each side to hear first hand what the other side has to say.
After the opening session, each party returns to their own room and the mediation continues with a series of confidential meetings, sometimes referred to as caucuses. The mediator meets with each side privately to clarify their respective positions and interests. If there is information that you or your attorney want to keep confidential, the mediator will honor that request.
The goal of mediation is to reach an out-of-court settlement of all issues. Sometimes this occurs on the day of the mediation; other times it requires additional information to be exchanged at a later date.
Family Law Cases
The nature of the issues in family law cases usually are best resolved by utilizing a different process. Frequently the attorneys do not participate; it is only the parties (people with the dispute) and the mediator. In addition, caucuses are rarely used and the participants usually stay in the same room throughout the process. Finally, family law mediations usually take place over multiple sessions, lasting an average of 1 1/2 to 2 hours each.
Mediation gives participants the opportunity to remain in control of decisions that will affect their property division, financial arrangements and children’s lives. Research indicates that children adjust more positively where there is less conflict between parents. By attempting to minimize misunderstandings and identify positive mutual goals, the mediator seeks to lessen hostility between the parties. The focus is placed on the present and future, not on what happened in the past. Mediation also eliminates the uncertainty that results from a trial.
Confidentiality
By contract and Missouri statutes, mediators may neither disclose nor be subpoenaed to disclose information made known to them in the process of setting up or conducting mediation. This allows for the full flow of information and concerns, which in turn makes it more likely that a settlement will be reached.
Role of the Attorney
Your attorney continues to play an important role when you participate in mediation. Since the mediator will not be providing any participant with legal advice, your attorney continues to act as your consultant, providing you with guidance through the legal process. You and your attorney determine how much of a role your attorney will play in the mediation process.
Ending Mediation
If the mediation results in a settlement of your dispute, the mediator writes a summary of the decisions reached in mediation. The summary is provided to the participants and to their attorneys (if any). It forms the basis for the settlement agreement, which is ultimately submitted to the Court for approval.
At any time, either participant may withdraw from the mediation process. The mediator may end the mediation at any time if the mediator believes continuing would be unproductive or inappropriate for any reason.
For more information about mediation, visit the United States Arbitration & Mediation, Midwest, Inc. website at www.USAM-Midwest.com.
