I. What is mediation?

A dispute resolution process in which a neutral and impartial third party(ies) assists people in conflict to negotiate an acceptable settlement of contested issues without having to resort to litigation.

What is a mediator?

*A third party who intervenes to assist disputing parties to voluntarily negotiate a jointly acceptable resolution when the parties are unable to agree, cooperate, negotiate on their own due to strong emotions, differences in way information is processed, conflicts of interest, conflict in bargaining position.

*A neutral person who does not stand to benefit from the terms of the settlement.

*An impartial person having no preconceived bias about how the conflict should be resolved.

*A mediator has no decision-making authority, cannot impose a decision: parties maintain control over the outcome.

*A mediator can help avoid or overcome impasse and may provide procedural assistance or possible settlement options.

What does the mediator do?

*Works with the parties to improve bargaining relationship and
communication, facilitating negotiation.
*Clarifies or interprets data.
*Identifies key issues to be discussed.
*Uncovers hidden interests.
*Designs an effective negotiation process.
*Generates possible settlement options.

*Helps to identify and formulate areas of agreement.

*Helps parties to be fully informed by providing practical economic and legal data, feedback as to consequences
of options under consideration, and assessment of the parties’ interaction from an outside perspective.

What are the alternatives to mediation?

*You and the other party(ies) sit down together with no outside help, negotiate a resolution and write an agreement. Works best when cooperation, communication and understanding is possible.

*Each side hires an attorney to represent them separately in negotiations. Having an attorney does not necessarily equate to going to court, but it may be necessary when parties cannot deal directly with one another. Attorneys protect legal rights but are also likely to make decisions for you. Also attorneys, especially if the case goes to litigation, can sometimes prolong the conflict and exacerbate ill feelings between the parties.

*Collaborative Law. Each party hires a collaborative law attorney and the clients and attorneys work together to reach an efficient, fair and comprehensive settlement without litigation. If litigation becomes necessary or desired by one or both parties, the collaborative law attorneys withdraw from the case and new representation must be sought.

*Neutral Evaluation. Once the litigation process has begun, the case may be assigned to a “Neutral” who, with parties and counsel, attempts to mediate a settlement. Unlike mediation, the Neutral “evaluates” the case based on experience and knowledge of the court, advising the parties of what they can expect the result of litigation will be, encouraging the parties to continue to negotiate settlement.

*With or without attorneys you turn the decision-making over to a judge. Last resort. Guaranteed to reach a decision,
but one that is outside parties’ control, unlikely to satisfy both parties or meet their particular individual needs.

Why use mediation?

*Protection of relationships.
*Time savings.
*Cost savings.
*Greater flexibility in possible settlements.
*Keeps the decision-making authority in the hands of the parties.
*Keeps the matter private.

What is required of the parties for mediation?

*Motivation. The parties are committed to resolving the dispute as amicably as possible.
*Self-reliance. The parties must be their own advocates.
*Information. The parties must be or can become knowledgeable about the various issues of the dispute, such as financial, technical and legal concerns and implications.
*Negotiation. The parties must have the ability and willingness to agree and disagree.

How long will mediation take?

*As long as necessary for the parties to make decisions.

*One mediation session of 2 to 3 hours may suffice, or multiple meetings over a period of days or weeks may be necessary.

How much will mediation cost?

*Mediation is typically far less expensive than adversarial legal representation.
*Mediation fees are charged on an hourly basis and generally run from $100 to $250 per hour.
*An elongated mediation, with substantial disagreements, could cost $2000 and more.
*The amount of time spent in mediation, and therefore the cost, is controlled by the parties.

Where does the “law” fit into mediation?

*State law is one of several possible bases that will guide mediated decisions.
*Mediated settlements must also include a sense of fairness - decision-making that honors each party and his or her needs.

Is there a role for an attorney in the mediation process?

*An attorney, as a consultant, may be useful as an information resource, educating, but not representing or advocating.
*An attorney should be considered to review the final agreement to insure legal and procedural correctness.

II. What Is The Mediation Process?

1. Mediators meet with each of the disputing parties, jointly or separately, to explain the process, clarify the voluntary nature of mediation and describe the role of the mediator.

2. Mediators establish procedural and behavioral guidelines.
a. Litigation must stop.
b. Both parties must fully disclose all necessary information
and produce relevant documentation.
c. No information obtained in mediation - written or oral - is to be used in court if mediation does not resolve the issues.
d. The mediator cannot be a witness in court for either party.
e. The mediator will not
inform how the case will probably be decided in court of law, or advise regarding the legal consequences of any decisions made.

3. The parties are invited, at the first session, to outline key issues from their individual perspectives and identify specific needs and interests that must be considered.

4. Mediators propose or help develop acceptable negotiation agenda.

5. Mediators assist the parties in handling strong emotions, misconceptions, stereotyping, miscommunications, and disentangle the parties from controlling behavior, self-deprecation, unwillingness to engage one another, and divisions of expertise.

6. Mediators ask the parties to gather information necessary for

making decisions, and jointly discuss each issue
and identify related interests or needs to
be satisfied.

7. Mediators assist the parties to back off extreme or hard line positions and preferred solutions advocated by each, and generate alternative settlement options. Mediation may include private sessions with each party.

8. Mediators lead the parties through impasse by helping them evaluate the merits of settlement by means of negotiations in contrast to non-negotiated alternatives.

9. Mediators help the parties to make “yes-able” proposals that will be more accepted by or readily agreed to by the other party, by structuring offers that meet both parties’ interests and improving the form in which the offers are communicated. Possible bases of decisions include:
a. The law and its underlying principles.
b. Each individual’s sense of fairness.
c. The identified needs and interests of all concerned.
d. The relationship between the mediating parties.
e. Any prior agreements between the parties.
f. Practical and economic realities.

10. Mediators interpret or translate offers, either in joint session or by “shuttle” mediation.

11. Mediators assist parties to identify and define areas of agreement by “testing” for consensus, listening for and restating common or overlapping views.

12. As parties reach agreement(s), mediators may record the settlement in an agreement or Memorandum of Understanding, which may later be drafted in the form of a legal document if necessary.

III. Choosing a Mediator

Why should I be concerned about choosing a mediator?

*There are many different approaches to mediation.
*Each party should have a clear idea about what he or she needs from a mediator.

What questions should I ask at my first meeting with a mediator?

1. Why did you become a mediator?
What do you see as your goal for mediation?

2. What kind of commitment do you need from us to agree to mediate?

3. Will you want to meet separately with us? If so, why? And if so, would you hold secrets?

4. Are you familiar with applicable law? Will you tell us how you think a court would decide our case? How important is the law to you?

5. How would you deal with stalemates?

6. How do you feel about our using
consultants, including attorneys and
accountants? Would you talk directly
with our attorneys?

7. How do you see your role in our
communication with each other? What
is the place of our feelings in this process?

8. How do you feel about our talking to each other about our conflicts outside the mediation office?

9. How much mediating experience do you have?

Is the gender of the mediator important?

*It’s important, at the outset, to determine how, if at all, the gender of the mediator affects the comfort level.
*Many marital mediations, for example, involve two mediators (co-mediators), one of each gender, although the relationship between the mediators themselves can reduce or increase tensions.
*In the end, it is an intuitive decision based on a feeling of trust.
*It should always be an option that you can seek or ask for a different mediator.

*Member, New Hampshire Conflict Resolution Association and the national Association for Conflict Resolution; New Hampshire Certified Marital Mediatior.