FAQ -- I've got questions about mediation, can you just answer a few questions … ?

• Er, I was looking for information about being a mediator (this will link you to the other faq) ...
• What goes on in a "standard" Mediation?
• Are there other types of mediation?
• Post Script Three -- Who are you?

One

I realized that I needed to write an essay about "court annexed mediation" (boy, is that a mouthfull) -- the type of mediation you get if you are sent to it by a Court.

While most of this site is aimed at helping mediators and attorneys, this part is about what you can expect from a mediation session if a judge sends you to one or if you are in a lawsuit and your attorney suggests a mediation.

Mediation has three virtues:

• First, it is pretty much confidential.
• Second, it is even handed, or fair.
• Third, it is voluntary.
• For a long script (designed for a mediator to use in explaining mediation), go to this link.
• For a short script (designed for a mediator to use in explaining mediation) to go this link.

 -- One of the easiest and clearest introductions to mediation available.  Usually available used for about ten dollars through Amazon.com. Click on the book to take a look at it and read some of it for free on Amazon.

Conflict Resolution
by Daniel Dana

(McGraw-Hill)

This book covers everything from start to finish and it serves as an excellent introduction to the field as well as being well suited to self-help. Extemely easy to use and refer to.   Order this book from Amazon.com -- about fifteen dollars, under ten dollars used.

Mediation is a process by which you decide what is best for your own interests with the help of a mediator.  It can be thought of as an assisted negotiation session, though it also can be much more. Other types of mediation other than "standard" are described below.

Usually it starts with all the parties and their attorneys meeting in a room together with the mediator. The mediator makes introductions and gives either a long, a longer, or a short introduction.  Then each side gets to make a statement.  At this point, the mediator breaks the group up and each side goes to a room of their own.  The mediator shuttles between the rooms, helping the parties exchange offers. A good mediator also helps the parties examine their interests, reframe the issues and plays the devil's advocate.  A mediator may or may not also help the parties in evaluating the matter.

At the end, usually about 85% of the time with a good mediator, the parties reach an agreement that is in their best interests.  If they decide to sign off on a signed agreement, the signed agreement is binding.  Also, some federal courts have made oral agreements binding and the 5th Circuit Court of Appeals has enforced oral agreements even when the parties disagreed about what they had agreed to.  On the other hand, some states have laws that if it isn't a signed agreement filed with the trial court, it doesn't count.  

That is mediation in a nutshell.  In theory, a mediator should never share anything you tell him or her without your permission.  In theory a mediator should not "spring" evaluations on anyone in a mediation without your permission (e.g. a mediator should never say "your case is worth $X.XX and I just told the other side that).  In theory a mediator should not browbeat or threaten you.  While most people consider mediation a far surperior experience to court (I'm talking people here, not attorneys), everything I tell you a mediator should not do is something that at least one mediator I have dealt with has done to a client of mine.  

Now a lucky attorney can still aid a client to get a superior resolution in spite of the problems I've mentioned (I did).  Further, the number of mediators to do such foolish or unethical things is declining. It is virtually unheard of now to hear of an experienced and well regarded mediator doing any of those things. But I can't promise that the odds will give you the result that you want, only say that in my experience that the odds are with you (after all, as Voltaire noted, once you are in a law suit, it is a bad thing, regardless of whether or not you are in the right or the odds favor you or not).

I obviously feel mediation is a very good thing and the numbers and surveys bear me out.  But I also believe in being honest. top

Two

Other types of mediation?  Of course.  The most common "other type" is transformative mediation which happens in employment situations and in personality conflicts. The Post Office uses it exclusively.  If you have a conflict with a neighbor or a co-worker, this type of mediation helps you learn to deal with the person, not just with the current problem.

In addition, there is theraputic mediation for family problems where the parties do not intend to get divorced, old fashioned evaluative panel mediation as practiced in some community centers and many, many other varients.  You just are unlikely to be sent to these by a court.  Any group that is proposing to involve you in this type of mediation should provide you with a pamphlet or similar material explaining the process to you.

In addition, there are many, many other things similar to mediation. It is a huge topic, though some of it is addressed here and here, not to mention here.   

Are all mediators attorneys?  No.

Should all mediators be attorneys?  I personally do not think so, though I think that all mediators, in order to have credibility and empathy, should be people with significant life experience or professional backgrounds. I should note that for some types of mediation (e.g. environmental, family counseling) there are few, if any attorneys.  Other types of mediation are dominated by senior litigators in the area being mediated (e.g. divorces are usually mediated by attorneys who are also board certified in family law, labor and FMCS mediation are both usually conducted by attorneys with over twenty years of litigation experience, etc.).   

Should everything be mediated?  While it is tempting to say yes, there are some things that just don't fit. o

Are there many, many questions beyond the scope of this simple article?  Yes.  Do I want you to e-mail me with questions about them? Please, no.  My current employment does not allow me outside engagements, so I can't answer specific questions. top

Three

Not all that long ago, a group reviewed this site, ranked it in the top one hundred small firm legal sites and had a strong criticism because the site is not strongly tied to my identity.  Often I receive feedback, comments or questions from people reared in the "context is everything" school who feel you can not separate the person from the writing.  

So, like all things that end up on my screen too often, this goes into the FAQ.  If you feel a need to know more about me, I have a personal philosophy section of this web site (not connected to the dispute resolution section) and a section based on my personal experiences that receives about ten thousand hits a month from people completely uninterested in dispute resolution.  I am also a working professional and I teach a little dispute resolution.  Links to those of my website are here:

• Stephen R. Marsh, Attorney at Law:  
• Ethesis:  
• Class materials from the my educational endeavors:  
• Surviving Grief, Loss and Death:  

That is more than enough about me. top

 -- One of the easiest and clearest introductions to mediation available.  Usually available used for about ten dollars through Amazon.com. Click on the book to take a look at it and read some of it for free on Amazon.

Conflict Resolution
by Daniel Dana

(McGraw-Hill)

This book covers everything from start to finish and it serves as an excellent introduction to the field as well as being well suited to self-help. Extemely easy to use and refer to.   Order this book from Amazon.com -- about fifteen dollars, under ten dollars used.

This Website is by Stephen R. Marsh
Contact Information at:
http://adrr.com/smarsh/