1. How does mediation differ from negotiation and arbitration?
Negotiation involves usually two parties who try to reach agreement by speaking directly to each other, without the intervention of an outsider.
Arbitration is like a private trial. The arbitrator decides. It differs from a trial in that the parties choose the arbitrator, whose feel they split. The parties design the process (whether to have a court reporter, whether to have live witnesses or rely on written documents, whether the rules of evidence will apply or hearsay will be permitted), and can thus lower the cost. It can be confidential. Also, the parties agree beforehand to be bound by the arbitrator’s decision so no appeal except under a few unusual circumstances.
In mediation the parties decide, with the help of a neutral third party. It has been called a “facilitated negotiation.” It’s voluntary; if agreement is not reached no rights are lost. An agreement which is broken may be enforceable in court as a contract, depending on the circumstances.
2. How does mediation differ from litigation?
When parties litigate a dispute, a judge makes the decision after hearing arguments from both sides. There is a public record. The parties are bound by the ruling which is final unless they wish to appeal. Possible remedies are limited. It may take a year to get to trial, and then a judgment may have to be enforced. There’s a winner and loser, and often bad feelings persist. Costs can be high.
In mediation the parties themselves control the outcome. They voluntarily reach a mutually acceptable agreement with the help of a neutral mediator. The process can be as creative as the parties wish, obtaining remedies not possible in court. It is agreement which they created together. It’s a collaborative, not an adversarial process.
Fundamentally, it is the difference between judicial determination and self- determination.
3. How long do mediation sessions last?
Sessions can run as long as the parties agree they should last. Our sessions normally take place within two hours.
4. Are there any formalities before starting a mediation session?
The only ‘formality’ is the mediator’s introducing the concept of mediation and explaining what to expect. After listening to this brief presentation, parties sign an agreement to mediate.
5. What is the role of an elder mediator?
As an impartial third party an elder mediator facilitates discussion, promotes understanding, encourages parties to focus on their interests, and uses creative problem–solving to assist parties to reach agreement.
6. Do all sessions take place in the same location?
The venue can be anywhere. Optimally we prefer that mediation take place in a quiet, neutral location.
7. How does elder mediation differ from other types of mediation?
Most elder mediations address more than one issue and last several sessions. In addition, more than two parties typically take part. Another key aspect is that the elder mediator talks privately with each party before the first mediation session begins. This gives the mediator an opportunity to hear first hand how each party views the issue(s) and weigh any power imbalances among the parties.
8. Do lawyers play a role in elder mediation?
That’s up to the parties. Mediators encourage parties to get legal advice before, during, and after the mediation. A party may wish for his or her attorney to represent him or her in the mediation session. But normally the lawyer does not speak for the client; the client speaks for himself. The lawyer may offer legal information or assist in drawing up settlement documents.
9. If the older adult is the focal point of the mediation, does he or she take part?
Absolutely. It is essential that the older adult (as long as he or she is able) participate. When the mediator meets privately with the parties, he or she begins with the older adult, who may be represented by an attorney, or a guardian.
10. What about in-laws or other support persons that a family members wishes to bring?
The parties decide. Normally we encourage people to allow anyone with a stake in the outcome to be present. The parties may agree that a support person such as a spouse can attend but not speak except in separate sessions.
11. Will everyone be in the same room?
We start in the same room and will stay together as long as possible. If a party wishes to speak privately to a mediator, or the mediator thinks it desirable to speak privately, that is possible.
12. How confidential is an elder mediation?
Confidentiality is crucial to any mediation. When a party signs an agreement to mediate, she or he pledges not to divulge anything said during the sessions. Similarly, the mediator is bound by the same pledge of confidentiality. If the mediator caucuses separately with a party or group of participants, he or she will not divulge to the other side what they say without permission.
13. Does a mediator have to be a lawyer?
No. While many lawyers are mediators, a large number of mediators are not attorneys. There is no requirement that a mediator first be a lawyer. In most states mediation is not considered to be the practice of law, and mediators do not give legal advice.
14. Is the Agreement or Settlement a legal document?
Depends on the subject matter and desire of the participants. It may be written as a contract and enforced in a court if breached. More often, it is written as a “memorandum of agreement,” initialed by the parties and, if desired, rewritten as a formal contract by one or more of the attorneys.