Are you undergoing a personal or professional conflict that needs resolving? Have you considered mediation? Westover Law explains how the process of mediation can be an excellent avenue for dispute resolution.

What is mediation and how does it work

A structured negotiating process, mediation involves a third party professional, who is adept at dispute resolution, who facilitates communication and negotiations between the two parties involved. The mediator does not offer solutions or make decisions. Instead, the mediator is responsible for the peaceful resolution of the dispute by encouraging the parties to focus on listening, generating ideas, prioritizing their needs and being open to compromises. This, in turn, may resolve the problem and the parties are able to reach an agreement, which is favorable for both sides.

Thus, mediation is a powerful tool to settle disagreements and disputes that arise in several cases including divorce, separation, child custody, child support, inheritance, property, family business and more.

So, how does the process of mediation work?

Typically, a mediation session involves six main steps:

  1. Planning: The mediator organizes the first meeting and plans important details such as the venue, time and those who will attend from either party. These may include lawyers, family members, friends, co-workers or other important witnesses who may affect the case and its outcomes. 
  2. Introductions: Before the formal process of mediation begins, the mediator introduces the parties present, as well as outlines the ground rules each party must follow for a cordial mediation session. A mediator may also present the goals of the session.
  3. Opening remarks: Once the introductions are complete, both parties have an opportunity to present their cases and perspectives, without interruption of any kind.
  4.   Joint discussion: Once the parties have spoken, the floor is opened to both sides to ask questions, voice concerns and clarify issues to better understand the opposing side. Here, the mediator encourages both parties to listen intently and focus on what the other party is saying without malice or anger. The mediator may also come up with questions and clarifications, if necessary.
  5. Caucuses: When emotions run high, especially in the case of ex-spouses to be, the mediator can separate the parties in different rooms, also known as caucuses. The two parties may feel more comfortable to speak openly in such an environment, especially if the mediator promises confidentiality.
  6.     Negotiation: Finally, when both sides are satisfied with their presented cases, the mediator facilitates negotiation. Here, both parties come up with proposals and counter-proposals that are presented to the opposite party by the mediator. The mediator encourages both parties to conduct this session cordially and being open to compromise.
Typically, a mediation session involves six main steps:

What’s the difference between lawyers and mediators?

As mentioned previously, the mediator must be an objective expert who is focused on dispute resolution between the two parties involved. Hiring a mediator is generally not as expensive as a lawyer.

If you look at a divorce case, a mediator can be highly beneficial in creating a more peaceful environment by encouraging the parties to have a more civil dialogue with each other. This can be helpful, especially if children are involved in the process and need their parents to have a more cordial relationship.

Lawyers, on the other hand, are not objective as they have their individual clients’ best interests in mind. They generally work towards a settlement that is most favorable to their client, unlike a mediator. Thus, the lawyer can also be part of the mediation process, but as a biased representative of one of the parties.

If no settlement or agreement has been reached during a mediation process, a lawyer can recommend their client to take the case to a court, where it will be presided over by a judge.

How many sessions of mediation do you really need?

There is no right answer as to the number of mediation sessions you need. It depends on the nature of the dispute, the number of witnesses involved and other factors that can either shorten or extend the process.

However, as a general observation, most cases require two to five sessions to reach a favorable agreement. In cases that are more straightforward, parties may only need one complete session to reach their decision.

A mediation session can last anywhere between two to five hours, depending on several factors. Mediators usually advise their clients to keep aside a day to complete the mediation process. If the outcomes are not achieved, they may schedule an additional session until the desired result is achieved.

It is important to remember that mediation is a much more flexible and cost-effective method for parties to resolve their disputes than going to court, which can be lengthy and expensive (with lawyers and court fees). And even if you don’t reach 100% agreement on all conflicts involved, the more you can resolve through mediation, the less you’ll pay to litigate all the items in court.

What are the advantages of mediation in a legal system?

  1. Informal: The process of mediation is generally informal and flexible in nature. It may not require witnesses or follow stringent rules regarding evidence, giving parties the opportunities to follow a more casual, yet perspective-based process.
  2. Confidential: As the mediation process is a confidential one, parties may feel more comfortable talking about the dispute and issues at hand. These mediation meetings may not be recorded or transcribed either.
  3. Shorter turnaround time: If you are looking to settle a dispute and do not have the time or patience to go in and out of court for months at a stretch, mediation may be the right option for you. Mediation takes less than half the time, and ensures you have a resolution or settlement earlier than a regular legal trial.
  4. Mutually decided solutions: At the end of the mediation process, the decision that is taken is by the parties as a result of their negotiations and compromise. This makes parties more satisfied with the results as they had a hand in the process rather than being bogged down by a decision made by a third party.
  5. Preserving relationships: A court case can be aggressive and turn ugly. However, in the case of mediation, a mediator encourages the two parties to listen and remain cordial at all times. This helps in preserving future relationships as well as creating a better environment for those involved, especially children in the case of divorce.
mediation is an excellent option due to its expedient nature and relatively lower costs.

Are there financial advantages to mediation?

It is no secret that court litigation is an expensive affair. In the case of divorce, this is not a sustainable way forward as the two individuals involved may already be reeling under the pressures of a split household and incomes.

In such cases, mediation is an excellent option due to its expedient nature and relatively lower costs. It is cost-effective as there is a set mediation fee that needs to be split between the two parties, thereby preventing huge, unforeseen litigation costs that can be difficult to meet.

How to get your spouse to agree to mediation?

One of the biggest challenges in kick starting the mediation process is ensuring both parties are on board. In cases related to separation or divorce, ex-spouses may already be undergoing conflicts and disputes. In such a situation, getting one of the spouses to take part in a mediation session may be difficult. However, there are a few tips to follow if you want to convince your spouse to participate in mediation:

  1. Communicate effectively: Tread lightly while communicating the intention of a mediation process with your ex. Share all the details you know and pick a time that is not stressful or conflict-driven. If you are not in a position to speak to them directly due to the disputes, consider sending a text or email instead. This is also effective as it gives them some time to think about their decision regarding the option of mediation.
  2. If you are still uncomfortable, you can approach your mediator to communicate the details of the mediation session to your ex. The mediator can speak to them on a professional level and clarify any concerns they may have.
  3. Share resources: If you are considering a mediation process, chances are you have done extensive research regarding the same. Share these with your ex to convince them that mediation can be a helpful option for both parties.
  4. Focus on the positives: If your ex-spouse is still unconvinced, explain how mediation can benefit both parties. For example, through mediation you both will be putting your children and family first. It is also an affordable process that ensures you have control over the outcomes as opposed to a court process where a third party takes decisions for you.
  5. Do not force: Finally, do not attempt to force the decision of mediation on your spouse. The most ideal situation is to convince them to participate amicably, and if that is not possible, forcing them to take part will only end in irritation or frustration on both ends.

There may also be concerns or questions your spouse may have before agreeing to the mediation process.

What is the cost of mediation?

Mediators charge by the hour or may offer a flat fee. Do some research and make calls to mediators in your area to have a better understanding of the average cost. However, explain to your spouse that the process of mediation is much more cost-effective than court litigation.

How to prepare for a mediation session?

Being better prepared for mediation can lead to more favorable outcomes. Advise your spouse to:

  1. Make a list of their concerns and questions
  2. Collate financial documents and information, if needed
  3. Appraise the property in inheritance or property disputes
  4. Bring pens, notepads, or a laptop to the session
  5. Have a good night’s sleep before the session to remain alert and fresh

How much time should they set aside for the mediation process

Even though you cannot tell your spouse the exact time they need to set aside for the mediation process, there are certain factors that will determine how long the process will take:

  1. The skill level of the mediator
  2. How prepared both parties are
  3. How complicated the issues/dispute at hand is
  4. How willing both parties are to negotiate and compromise
  5. Availability of both parties at the same time

Thus, mediation can be highly beneficial to resolve disputes in a more informal and (hopefully) amicable process. If you need more information on the mediation process and how it can help your personal or professional disputes, contact Westover Law today!