The Mediation Process
Mediation is a process that is designed to assist adverse parties to voluntarily resolve their disputes. At MacLeish and Woolverton, we mediate a variety of cases including divorce and child custody cases, personal injury lawsuits, business disputes (including complex matters involving multiple parties), education related matters and family disagreements (such as will contests).
In divorce cases, mediation assists spouses to develop their plan on how to parent and how to resolve financial issues. What emerges from successful mediation is a plan that is formulated by the parties – and not imposed upon them by a court. It is a process that is entirely voluntarily where the parties are in control and reach a peaceful outcome. The goal in other disputes that we mediate is very similar.
One of the goals of mediation is to avoid a far more destructive, expensive and lengthy process – a lawsuit. Mediation can take place before a lawsuit or divorce complaint is filed, or after a filing. If the mediation is successful, the dispute can usually be finalized within a matter of weeks, not the years it can frequently take to have the case resolved in court. Indeed, courts frequently suggest mediation in an effort to avoid the time and expense of litigation.
Mediators are different from arbitrators or judges. Essentially, they have no power; they cannot compel any party to enter into any resolution. However, they can effectively serve as neutrals and, when properly trained, can help to dissipate the emotion and anger that often prevents parties from resolving their differences.
Mediators often stay involved with a case even after it is “settled.” Even when there is an “agreement” reached in mediation, there are always final settlement documents or separation agreements to be drafted and issues occasionally arise. At MacLeish and Woolverton, we stay involved as long as is necessary. In family cases, that may mean staying involved long after the case is settled, particularly if there are issues relating to parenting following the mediation. In a complex business dispute, it may mean sitting down and working on a final document that resolves issues such as releases, non-disclosure or liquidated damages in the event of breach.
Many mediators are attorneys. However, we believe that, in many cases, more successful results can be obtained through a mediation process that includes a licensed clinician. Clinicians are trained to be active listeners. Disputes often evoke strong emotional reactions. Often, these emotions impede the achievement of a resolution. A trained clinician, with long-term experience in mediation and court proceedings, as well as family issues, child development and emotional responses can provide significant assistance in listening to the emotions that are preventing successful resolution.
Parties often experience mediation with a clinician and an attorney more empowering as they face difficult and powerful feelings, as well as complicated decisions. The role of the clinician is not to provide “therapy.” Therapy has a range of meanings, including “healing.” We do not venture to “cure” the anger or sadness that accompanies most divorce and many personal injury cases (and sometimes business disputes), but we do endeavor to make sure the process is “therapeutic” in that the parties leave believing that their voices were heard and their story was listened to.
No one leaves a successful mediation believing that they have “won” or “lost.” They leave the mediation feeling that they can move forward with the agreement that was reached.
We offer a free 30 minute consultation so that you can meet with us and make an informed decision about whether you wish to mediate and whether you wish to mediate with us. Before the consultation, we will have a brief conversation on the phone with each party in order to gather information about you.
What to Expect
Some mediators require that you have counsel present in mediation sessions. Our firm believes that the choice is yours. It is often helpful to have attorneys to answer any legal questions that you may have during the process of mediation. We believe, if necessary, that financial advisors are also useful to help sort through any financial concerns. These individuals can be present or not during your mediation.
It is helpful for us to know as much about your case as possible before you arrive. In personal injury, business or education cases, your lawyer may prepare a pre-mediation memorandum. If you are in a divorce case and do not have an attorney, then we would like to receive as many relevant documents as you can provide us, such as financial statements and information about your children.
There are no templates in mediations. We will initially want to understand what your goals are, as well as your fears and concerns. The point is that our firm does not coerce parties into accepting agreements that they cannot live with. If asked, we will describe the potential scenarios if the case is not resolved (unsuccessful mediation).
One of the key differences between mediation and litigation is control. In litigation, you have no control; someone other than the parties -- a judge or a jury – makes the decision for you. You can indeed be the victor; or the loser.
By contrast, when parties successfully mediate a conflict, they are in control of the outcome. Again, each party will not end up with their ideal result, but the risk of a totally unacceptable decision is eliminated.
In mediation, the parties sit down, listen and work through issues for a successful result. There is no doubt that ending disputes through mediation instead of litigation will result in significant time, emotional and financial savings.
In short, mediation avoids the risks and costs of litigation; ends adversarial proceedings that can cause trauma and negative emotions for parties and others (such as children in divorce cases); and is entirely voluntary.