Mediation is a form of settlement conducted and assisted by an impartial attorney trained in the art of settling disputes. Unlike arbitration and other kinds of alternative dispute resolution, mediation allows the parties to arrive at their own settlement. The mediator makes no findings.
The mediation process, a private meeting, may have several stages. First, the parties meet with the mediator in general session. Usually this meeting is without the attorneys being present, but on call if the party desires to discuss an issue with their attorney. During this session, the mediator explains the process and sets forth the ground rules. The parties have an opportunity to discuss their concerns and the issues that are present in the dispute. The parties are encouraged to speak openly to each other. The mediator asks clarifying questions and determines areas of agreement.
After the first session, the parties may separate into different conference rooms for private meetings called caucuses or private conferences, The mediator will try to facilitate as much option building and communication as possible prior to entering into this the second stage of mediation. These caucuses, if held, are confidential. Nothing said to the mediator during a caucus can be repeated outside the caucus except by permission of the party. This confidential meeting allows the parties to express matters that he or she would be unwilling to state in the presence of the other party and their counsel. At this stage, the mediator, the party and counsel, if present, undertake a candid discussion of risks, the party’s interests, generate further options and look at settlement flexibility, and strengths and weaknesses of the case. During the caucus stage and when the parties are together, the mediator will facilitate negotiations between the parties, allowing the parties and their council, if present, to search for solutions sometimes not available in a trial or hearing. The mediation process is flexible and resolutions are sometimes reached outside the structure of the Family Code.
The mediator may also provide insight based on experience to help the parties evaluate their case and positions, as well as facilitating the parties to look at the best interest of the children. A reality check is sometimes necessary to help the parties clarify and narrow the issues present in the complaint or dispute. The parties quite often must continue to communicate after their divorce or dispute is resolved and mediation is a good opportunity to continue or start this communication process.
When it appears that a consensus has been reached, the mediator assists the parties in memorializing the essential terms of the agreement, which each party signs after their attorney has had an opportunity to review the agreement. This signed agreement is binding on the parties.
The entire proceeding is privileged and confidential. The law prohibits the mediator or any party telling the court anything said during the mediation. The mediator only reports the case did or did not settle.
Please call or contact:
Jeff Kilgore at 409-939-6924