The Basics of Family Mediation
Mediation is a voluntary, consensual process that uses a trained, neutral third party to facilitate the negotiation of disputes. The goal is to reach a binding settlement agreement. Often, attorneys for the disputing parties are integrally involved throughout the process, but this is not a requirement.
CASES AMENABLE TO MEDIATION
“Generally...almost any civil dispute is amenable to mediation.”
Virginia Supreme Court Chief Justice Carrico, 3/27/95
Any case that can be settled is amenable to mediation. Family cases are particularly well suited because the issues are particularly personal and emotional. The fact that mediation gives people the opportunity to be heard and to listen to the perspective of the other party means that couples are often able to work out their differences in productive ways that minimize disruption to their lives and, where there are children, to their children’s lives.
THE BENEFITS OF MEDIATION
The use of mediation is increasing dramatically across the nation. The advantages of mediation are recognized to be numerous and substantial.
- Control by parties – The parties remain in charge of the outcome.
- Opportunity for better results – The parties understand their dispute better than any court or jury could.
- Effective – Approximately 85% of cases handled by The McCammon Group reach settlement.
- Greater compliance – Parties are more likely to comply with a mediated result than with a judgment or an arbitration award.
- Reduced time and expense – Mediation can be concluded in a single day or in a series of shorter sessions over a period of time chosen by the parties.
- Voluntary, consensual process – The parties stay in control. The result is determined by the parties.
- Preserved, improved relationships between parties. This is especially important in family cases where the parties may have on-going dealings with each other or with children or other family members.
- Decreased stress and disruptions to ongoing activities.
- Improved skills and relationships – Mediation helps parties in future negotiations and dispute resolution.
AGREEING TO MEDIATE
There are several ways to get to mediation.
1. Most often, one party decides it would be helpful to resolve the dispute through mediation and suggests
mediation to the other party. The other side, typically, agrees.
2. In pending litigation, the court often suggests or even orders that the parties consider mediation.
In either case, a call to The McCammon Group will get the process moving. A staff person will provide information about the mediation process and will answer any questions the parties or their attorneys may have.
SELECTING THE MEDIATOR
Once the parties have agreed to mediate, The McCammon Group works with the parties or their counsel to determine which of its mediators would be best suited to serve. The staff person handling the case may suggest one or more mediators based on the issues or profile of the case, although the parties or counsel may request a specific mediator as well.
The basic role of a mediator is not to render a decision but to facilitate a negotiation and assist the parties in clarifying their issues and resolving them. If the parties choose, an additional role of a mediator may be to evaluate the issues in dispute. These roles should be considered in picking a mediator. Other factors to be considered involve the individual characteristics of the mediator:
- Neutrality and integrity
- Inter-personal skills
- Subject matter expertise, if the parties desire evaluation of the issues
Before the mediation occurs, a staff person will speak with the parties or their lawyers to make sure that the case is appropriate for mediation, and to discuss who will be present, the format of mediation, and costs. In some cases, the mediator will conduct a conference call with the parties and/or their lawyers prior to the mediation. This call is an opportunity to ask additional questions and to share any information that might be valuable in moving the process forward. If the mediator needs any written information prior to the mediation, it would be discussed during this call.
THE ATTORNEY AS ADVOCATE IN MEDIATION
At the mediation itself, parties can have their attorneys present or they can choose to participate without their lawyers. Whether they are present in the session(s) or not, however, attorneys have a critical role to play in ensuring that parties have a clear understanding of their legal rights and obligations as they go through the mediation process. Mediators are not permitted to give legal advice and are ethically and statutorily obligated to make it clear to the parties who choose to mediate that they should seek independent legal advice. The mediated agreement that parties reach is only as strong as the information on which it is based and it is critical that parties be well informed and clearly advised about the ramifications of the decisions they are making.
The mediator first explains the process to be utilized and establishes the ground rules. All those in attendance sign a mediation agreement which, among other things, binds them to strict confidentiality.
PRESENTATION OF VIEWS
One party presents his or her view of the dispute. This presentation is informal and can be done by the attorney and/or the client. Cross-examination is not used, nor are any rules of evidence or procedure utilized. The other party is then given an opportunity to present his or her view of the case. This process continues as long as necessary to get the issues on the table.
PROBLEM SOLVING/NEGOTIATING STAGE
With the aid of the mediator, the parties and their counsel, if they are present, then initiate negotiations. The mediator helps the parties focus on identifying the real issues and addressing them.
While the legal aspects of the family dispute are certainly relevant in the negotiation, possible solutions may involve extra-legal issues as well. These non-legal matters are often at the heart of the dispute, yet, they may not be adequately addressed in a courtroom.
The negotiations continue until successfully completed or until the parties decide that they are unable to reach a resolution. The problem-solving may take place in confidential private sessions (“caucuses”) between the mediator and each party, and may also take place over more than one session.
Depending on the needs of the parties, family mediations may either be scheduled to be completed in one day or, more frequently, in two- to three-hour sessions. Often, it is decided in the initial session that additional information needs to be gathered or that the parties need time outside of the mediation to complete certain tasks or to look for other possible solutions to a particular issue. In that case, the participants simply schedule a subsequent session a week or two after the initial meeting to give them time to gather the necessary data.
A settlement agreement is reduced to writing when the parties reach agreement. Where the parties have their attorneys present during the mediation, the attorneys draft the terms of the agreement. Where attorneys are not present, the parties may draft an agreement and then consult with counsel following the mediation to have their agreements put into final form. If questions are raised during the legal review, the parties can agree to return to mediation to discuss the issues and finalize the agreement, if necessary. Or they can waive this legal review and agree to a binding contract in the mediation. Agreements affecting the rights of children may be subject to ongoing judicial review.
The fundamental style of The McCammon Group mediators is facilitation. This involves the personal skills of a mediator used to clarify interests, identify issues, test the merit of positions, and generally to assist the parties in moving toward common ground. A mediator may give legal information including the neutral evaluation of issues. Such evaluation is provided only where (1) the parties request it; (2) the mediator thinks that the requested evaluation is appropriate and necessary; (3) the mediator is qualified to give such evaluation; (4) there is sufficient information on which to base such evaluation; and (5) such evaluation is provided in reasonably broad and qualified terms. As the mediation proceeds, the needs of the parties may change, and the nature of the services provided may likewise change, as the parties may request.
The McCammon Group mediators do not give legal or other professional advice. They do not predict specific outcomes to legal disputes. While they may suggest possible options by which to resolve a dispute, they do not recommend any particular solution since the ultimate decision is made by the parties.
PREPARING FOR MEDIATION
The parties and their counsel are well served by appropriate preparation, whether the attorney will be participating in the actual mediation or not. Both the party and attorney should have:
- A realistic view of the issues in the dispute.
- A clear understanding of his or her needs and goals.
- An initial presentation of his or her viewpoint.
- A willingness to compromise.
In addition, they should be prepared to:
- Explore options to be considered in the general session and in caucuses.
- Explore and evaluate different settlement scenarios.
- Find ways to assist the other party to be flexible on critical issues.
- Explore a resolution
- Make a decision
BEING SUCCESSFUL IN MEDIATION
Being successful means getting to the best possible result with the lowest possible cost – both emotional and financial. The key to that result is that the decision maker in mediation is not a judge, the lawyers, or the mediator – the decision makers are the parties, with the advice and assistance of counsel. Thus, the most effective approach to mediation is likely to be based on a desire to reach a good resolution and end the dispute, rather than the combative style that may have characterized earlier interactions between the parties and their counsel. Being open to the possibility of crafting a creative solution means that the result may be something that both parties can live with more readily than if the result were imposed on them.
Generally, the interaction taking place within the mediation process is confidential. This encourages a full exchange of facts, views and feelings.