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Mediation is the process by which parties in an unresolved dispute come together with a neutral person who helps the parties in the dispute reach an agreeable resolution of the dispute. The first step is for the parties to agree that they need outside help in reaching a resolution and then to agree to the third party mediator. That often requires each side submitting the name of a proposed mediator or mediators and then picking one to help.
It is not uncommon for there to arise in our lives disputes with business associates or partners, spouses, children, parents, neighbors, within groups of all kinds that must be resolved in order for all concerned to move on. No matter what has been tried between the folks in dispute, nothing seems to work and often the battle lines become deeper and more entrenched. That is often the result of not being heard or understood or lacking the ability to put into words your thoughts, concerns and position. Having a trained mediator help with all of that and serving as a facilitator, new avenues of communication and resolution can be explored and agreed to. On the other side, the options of living with the anger, frustration and resentment is not healthy for anyone, and lawyers and litigation are expensive in time, money and emotions. A goal of the mediation is to assist parties in exploring complex and sometimes contradictory information necessary for reaching agreement.
No, the purpose of the mediation is for the parties to reach agreement and the mediator will not impose a decision – that process is called “arbitration” and is more fully addressed below. As a voluntary process for the participants, either party may withdraw from the mediation at any time, or the mediator may recommend that the mediation be suspended or terminated without reaching agreement.
Arbitration is more like a private court proceeding in which the parties make their present their arguments evidence, and then the arbitrator enters an award. There are varying forms of arbitration including more formal proceedings with some rules of evidence, specified processes, etc. Others are more informal, not unlike mediation sessions, but with the understanding that the arbitrator will make the final decision if the parties don’t resolve the dispute before it comes to an award. There are instances where the parties may, with prior advisement and understanding, agree to a two-step process in which they start with mediation, but upon impasse agree to arbitration.
As noted above, the parties to an unresolved dispute recognize that they need help to reach resolution and that mediation is the best option. In addition, there are jurisdictions, such as Colorado, where the courts require mediation before a case may proceed to trial or hearing. If that is the case, the court will enter an order requiring the parties to mediate within a certain time frame or explain why they haven’t.
The short answer is that they should not do so without prior approval of the court that entered the restraining order and only under the strictest guidelines. Such participation would raise significant issues not only for the protected party but also the restrained party.
More often than not, the fees and costs for the mediator or arbitrator are split equally between the parties. That is not to say that the parties may not agree to some other arrangement that recognizes the economic disparity between them. In addition, the written agreement, which should be provided and required by the mediator or arbitrator, may provide that the mediator or arbitrator has the authority to make an unequal division of the fees and costs depending on such things as the failure of a party to reasonably participate in the process.
That is wholly dependent on the nature and extent of the dispute but again, it is often the suggestion that the sessions have some time limitations, such as two hours at which time the parties and the mediator determine how and when to continue.
There are a number of goals in any mediation, including exploration a reasonable resolution of the ongoing dispute, efficient sessions and spending everyone’s money as wisely as possible. That being said, each party should examine closely his or her position and determine what evidence and background information is needed to fully explain that position to the mediator before the sessions begin. It is inefficient if the mediation is interrupted while one or all parties have to go back and gather what they should have brought in the first place. It is not the role of the mediator to assist either or both parties in preparing the support for their position.The disclosure of all appropriate information ensures that the parties make decisions based on sufficient knowledge.
It must be kept in mind that a mediator will not provide legal advice to either party, and any legal questions should be discussed to an attorney. The attorney-client relationship may play itself out with the attorney coming with the client to the mediation, and the attorney may or may not take a lead role in the mediation. Usually it is important for the parties to hear the other party and the concerns that must be addressed. That may not happen if the attorney filters the client’s position.
Absolutely, it is important that before a Memorandum of Agreement is signed and submitted to the court for consideration, that the parties fully understand what its import and impact will be.
It should be anticipated that having gone through the mediation, there is a greater appreciation of what it takes to fully engage in communication, speaking and hearing disparate concerns, what it takes to move forward when it seems an impossibility, how to craft creative solutions, and learning about how you will grow from here in all relationships.