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Mediation Answers:
1. What is Mediation?
Mediation is a private, informal dispute resolution process in which a neutral third person
(“mediator”) helps disputing parties to reach an agreement. The mediator has no power to impose a decision on the parties.
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2. How is Mediation conducted?
The mediator usually has very little, if any, information about the dispute when
mediation begins. This is intentional so that the mediator is in fact, not favoring or appearing to favor one side or the other. Attorneys may or may not be present. Typically, mediation is either done
with all parties present when information is shared with the mediator or with the mediator doing “shuttle diplomacy” by going from group to group and obtaining positions and authorizations to make certain
proposals. This is called “caucusing.” Often the mediator uses both methods during a single mediation.
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3. What is “facilitative” Mediation?
Facilitative Mediation is the attempt to assist the disputing parties reach
agreement by having the parties share with the mediator their differences and why they have a dispute. Typically, facilitative mediation takes place with all parties present so that all parties can participate
in “active listening.” The mediator helps the parties come to some common understandings in reaching a solution. This type of mediation is very fact oriented and the eventual resolution may not
reflect how a court would decide any particular case. This type of mediation is the preferred model for the mediator.
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4. What is “evaluative” Mediation? Evaluative Mediation is when the mediator, after listening to the facts of
the case from the various parties, attempts to assist the parties is reaching a compromise by literally “evaluating” the legal position of each party in a particular dispute. Sometimes the mediator in the
same mediation uses both the “facilitative” and “evaluative” approaches. The evaluative approach is not favored as much because it easily becomes the practice of law and often can be interpreted as
providing legal advice to one side or the other in the dispute. This is contrary to the “neutral” role of the mediator. Often, mediators are not attorneys. As such, the non-attorney mediator is
not licensed to practice law and thus is not qualified either by experience or training to give “legal advice.”
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5. Qualifications:
In addition to the training I’ve received, I have been a Volunteer member of the Dane
County Case Mediation Program for several years taking mediation assignments in the financial area of Family Law. (The model to be used is the “facilitative” model and we avoid as much as possible the
“evaluative” approach.) I do NOT draft agreements in these matters. The attorneys for the parties must do the drafting.
I have also been privately retained to assist people in the divorce process. Typically, attorneys do not represent the parties and the parties
understand that the “evaluative” model must be utilized in addition to the “facilitative” model. The parties must sign an agreement that they understand that I will be assisting them in understanding
the impact of the law on the facts they present to me as the mediator and that I will be drafting documents for them and therefore “practicing law.” I do not give legal advice to either party. I do,
however, explain my understanding of the law as it relates to a given area so that the parties can make knowing and voluntary decisions. I very often refer parties to experts such as appraisers and
psychologists, especially where I believe my expertise is not adequate to assist the parties in achieving a fair resolution to their problem.
I much
prefer to assist clients in family law matters as a “collaborative” lawyer. In the “collaborative” process, both parties to a divorce or other family law dispute have their own attorney to explain the law to them. Both the parties and the attorneys are committed to resolving the case without resorting to any CONTESTED hearings. If either side wants to “have their day in court” then both attorneys are required by the Collaborative Law Contract to withdraw from the case. The result is the parties save themselves much of the emotional and financial distress that goes with the typical “litigation” model for divorce. (I call this the “blood
and treasure” savings.)
Click on the following links for more information on Collaborative Law.:
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