Mediator as Process Person
The Orientation to Mediation
In your first meeting, the mediator will provide an orientation that describes the mediation process and the mediator’s role. There is no charge for this meeting. It allows the parties to get to know the mediator and to decide if they think the mediation process will work for them.
If you agree to mediate, you sign an agreement to mediate. Once you sign the agreement, everything said after that point is confidential.
If you decide not to mediate, the session will end and no payment is required.
If you decide to go forward, the session concludes with a homework assignment. The homework is focused on what is needed to make the next session productive.
You should expect to be in the same room for most mediation sessions. In those sessions, you will take turns sharing what you’d like to see happen, making proposals and counter proposals.
The mediator will set some ground rules. One rule is to focus discussions to the future rather than the past. The past cannot be mediated, but the future can.
Some topics evoke emotion. If that happens, emotion can be diffused when parties address the mediator. The mediator can reframe the information for the other party. This reframing often helps parties “hear” the information better.
The mediator will record any agreements reached. The mediator will also keep a list of disagreements and what information is needed to resolve those disagreements.
The mediator will help the parties focus on making offers to the other party. If discussions turn to arguments about the past, the mediator will redirect the focus to the future.
Sometimes it is helpful to hold a separate session with each of the parties. Such separate sessions are confidential.
Sometimes it is helpful to take a break to walk around the block or call someone for advice. Such breaks are allowed.
Mediation sessions are usually two hours in length. Your mediator provides a summary of the mediation including tentative agreements and homework after the session.
Role of Lawyers
Parties may speak to an attorney at any time. Attorneys help help parties to mediation in several important ways —
- Prepare for mediation
- Reality test positions and assumptions
- Review mediated agreements and explain the legal ramifications
- Prepare the paperwork to be filed with the court for child support and the divorce decree
- Assist with the paperwork required to split retirement accounts
- Providing the advice that mediators are not ethically permitted to provide
If the mediation is successful, the mediator drafts a mediated agreement in plain language. In so doing, the mediator’s role is that of “scribe” recording the agreement in the words of the parties. This agreement, once signed, is legally enforceable.
It is typical that any disputes related to performance under the mediated agreement would come back to mediation. This agreement typically would be attached to the submission of a fully agreed petition for divorce.
Unlike binding arbitration or court, mediation is voluntary and can be terminated at any time by either party. The parties are in charge. As a consequence a mediated agreement may not result. However, a mediated agreement may cover some issues and leave open other issues for court.
How to Get the Most out of Mediation
My suggestions for getting the most out of Mediation are:
- Prepare, prepare, prepare
- Look at the big picture
- Don’t sweat the small stuff
- Try to park emotion outside the room
- Look forward, not backward
- Fight the urge to blame and punish
- Get in the right mindset by reading a book like “Getting to Yes”