Mediation is a way of resolving disputes where a neutral third party works together with the two parties to facilitate an agreement.
The mediator has no authority to decide the dispute or to force either party to agree to anything. Rather, the role of the mediator is to assist the parties in clarifying their interests and priorities, to generate options and help the parties evaluate the various options, including a consideration of the potential legal arguments, tax consequences and other outside information.
The mediator meets directly with the two parties and sometimes, with their agreement meets with each of them separately to explore possible resolutions. Each party also has an attorney with whom they may consult at any time, though usually the attorneys are not present at the mediation meetings.
The mediator will create a professional environment and structure the discussions in a constructive manner. The mediator will also document each meeting for the benefit of the parties as well as their attorneys, summarizing the information developed in each meeting, agreements discussed as well as homework and agenda for the next meeting.
Once an agreement is reached, the mediator will prepare a written agreement for the parties to review with their attorneys. Attorneys for the parties also handle the requisite filings with the court including the Declarations of Disclosure for each party.
Mediation generally is a more efficient and therefore less expensive process for the parties to become informed of the issues and options and to communicate their preferences in reaching a resolution. It may not be an appropriate process for couples in extreme conflict or in domestic violence situations since it is necessary for the parties to meet together with the mediator and to be able to express their respective opinions.
Family mediation generally is a process in which the parties meet together with the mediator to gather information, discuss and resolve the issues of children, property and support in a divorce. Each party has a consulting attorney who are usually not present during mediation sessions but who consult with the clients “outside of the room”. Attorney-assisted mediation is a process where the attorneys are more actively involved in the mediation, interface directly with the mediator and participate in many of the mediation sessions. It is a collaborative process with both parties and attorneys at the table who, with the guidance of the mediator, focus on cooperatively collecting necessary information to understand the issues, explore the underlying interests of both parties, and work to create solutions that best serve those interests.
When is Attorney-Assisted Mediation Appropriate?
The effectiveness of party mediation depends on two primary variables: Communication and Complexity. Communication has to do with the parties’ ability to communicate effectively with one another, which can be difficult and if there is significant conflict, may be impossible. The attorneys meet with the parties outside the room and then in the mediation, can help clearly present their client’s interests and constructively respond to the other party. Complexity has to do with the legal and factual issues involved and the parties’ ability to understand them and make informed decisions. If the issues are more complicated, often the proposed solutions are as well, and it can be helpful to have the attorneys present to help develop ideas for resolution as well as to work through the implementation. Of course, it is important that the attorneys are supportive of the mediation process and collaborative about finding solutions. Generally, attorneys who consult on mediation are experienced and supportive of a collaborative approach to family law and can be an asset to the actual mediation process.
How does Attorney-Assisted Mediation Progress?
An attorney-assisted mediation might begin with the parties working with the mediator and adding attorneys, or working with attorneys and adding the mediator. It develops out of the sense from either the mediator or the attorneys that an expanded process would be more effective. It is often a more structured process than conventional mediation as we attempt to be most efficient in the use of professional resources. An early session with everyone present is a good opportunity for the mediator to develop the overall picture of the children’s and financial issues and to explore the interests of each party. The attorneys will be very familiar with the process of collecting information, obtaining valuations, assembling Disclosures, as well as getting the matter on file with the court, and much of that may be accomplished without meeting with the mediator. When the information is gathered, joint sessions will be most productive to identify agreements, issues in dispute and potential solutions. When agreement is reached, the mediator might prepare a Term Sheet or Memorandum of Agreement from which the attorneys would prepare the final Marital Settlement Agreement and Judgment. In this way, the parties receive the benefit of the skills and contribution of each professional as needed.
What are the risks of Attorney-Assisted Mediation?
As a mediator, my biggest concern is that the process becomes overly legalistic and the parties lose their ability to engage in discussions based on their interests as opposed to their entitlements. One of the greatest values of mediation is the opportunity to move from the inside out, from your goals, needs and interests to resolution, rather from the outside in, from a legal analysis to a defined set of results. Parties will disagree, I fully expect, about both their respective goals and interests as well as their respective entitlements. But working from interests it is possible to better develop creative solutions that give each party more of what is important, where the legal approach can often “cut the baby in half”—it was after all Solomon who suggested doing so–which classically defeats the true interest of both parties. It is primarily the mediator’s responsibility to guide the process and at least point out when legalistic approaches are driving solutions and to invite consideration of the parties’ goals and intentions. It may be that ultimately a “legal” solution is most expeditious and desirable, but it is chosen with awareness of other options. Similarly, alternative agreements reached in mediation that depart from traditional legal solutions, are chosen with awareness of the various legal outcomes. Attorney-assisted mediation is an effort to support and educate the parties without disempowering them in a legalistic approach.
Threshold Resources Mediation
Sherry Cassedy is an experienced and skilled mediator. She has over 30 years of experience in litigating, negotiating and mediating family law cases. She has trained in mediation with Gary Friedman at the Center for Mediation in Law in 1990 and 2001. She has continued to receive additional training through professional conferences. She obtained her Masters degree in Transpersonal Psychology in 2006. She takes a pragmatic, professional and compassionate approach in her mediation practice.