GILLSVILLE LAW, LLC OFFERS BOTH DIVORCE AND CIVIL MEDIATION SERVICES
What Is Mediation And How Does It Work
Mediation is a procedure in which the parties discuss their disputes with the assistance of a trained impartial third person(s) who assists them in reaching a settlement. It may be an informal meeting among the parties or a scheduled settlement conference. The dispute may either be pending in a court or potentially a dispute which may be filed in court. Cases suitable for mediation are disputes in commercial transactions, personal injury, construction, workers compensation, labor or community relations, divorce, domestic relations, employment, or any other matters which do not involve complex procedural or evidentiary issues. Attendance at the mediation conference is voluntary by the parties, except where governed by statute or contract clause.
A mediator is a person with patience, persistence, and common sense. She/he has an arsenal of negotiation techniques, human dynamics skills, and powers of effective listening, articulation, and restatement. The mediator is a facilitator who has no power to render a resolution to the conflict. The parties will fashion the solution as the mediator moves through the process. In many jurisdictions, the mediator is an attorney but can not give legal advice while in the role of a mediator. However, the mediator's subject area expertise may be beneficial to the parties in wording and framing the mediated agreement or in circumstances where the parties are open to neutral case evaluation.
BENEFITS OF THE MEDIATION PROCESS
There are numerous reasons why a party to a dispute might choose mediation over traditional litigation or other forms of alternative dispute resolution. Some of them are affordability, timely resolution, private sessions, confidentiality, participation in the resolution of the dispute, and in many cases preservation of the interrelationship between the parties.
The cost of mediation is less than the average cost in time and money for the litigation of a dispute. The mediator's hourly rate is generally lower than the hourly rate for a lawyer. Parties can often schedule mediation within weeks of a decision to mediate or a court order to mediate.
Mediators offer their services in the evenings, weekends, and regular weekdays. There are no spectators to the mediation and whatever is said in the mediation can not be repeated or reported by the mediator to another party. The Settlement Agreement is the only record of the proceedings. The Agreement to Mediate which is signed by the parties prior to the conference will often remind the parties of the confidentiality of the session and that the mediator is not available as a voluntary witness in a trial of the matter.
The ability to fashion user-friendly resolutions to a dispute is an attractive component of mediation. The parties are empowered to solve their problem in workable terms to achieve a "win-win" solution. This often promotes healing where one party feels tremendously aggrieved or allows the parties to continue their business, employment, or personal relationship. In many cases, the parties strengthen their working relationship for greater workplace efficiency.
HOW DOES IT WORK?
The conference is held at a mutually agreeable neutral place. It can be the office of the mediator or another private facility unavailable to spectators. However, the initial mediation may continue with subsequent telephone negotiations between the mediator and the parties where appropriate. Generally, mediators will employ face -to- face negotiations or conduct co-mediations in potentially inflammatory circumstances such as domestic relations.
Present at the session are the parties, their attorneys, if represented, the mediator, and others as agreed to in advance. In community mediations, there is generally a large number of persons present and often there are co-mediators. The room is spacious and decorum is difficult.
Parties to a mediation may or may not be represented by counsel. When counsel is present the parties may be encouraged to work with the mediators and to confer with the attorneys on legal issues. In general, the protocol with the attorneys is set prior to the session. Attendance at the mediation by the party with the authority to settle is essential. In personal injury or workers compensation mediation, the insurance adjusters must advise the mediator that their supervisor or another person with full settlement authority is readily available by telephone.
The session, at the discretion of the mediator or the forum, may be process-centered ( facilitative) or substance-orientation (case settlement or evaluative). Case settlement is often preferred by most courts that use mediation for their small claims cases. Evaluative mediation is used for industry-specific mediations where an expert is required to understand the nature of the controversy.
A facilitative mediation will progress through several stages:
Introduction: Initially the mediator will give an opening statement that may or may not be memorized but which will include pertinent information for the parties. It will begin with an introduction and a description of her/his training and experience, do ethics check, and get the names of the parties and their counsel or representatives. Then, administrative matters are discussed: The mediator's fee; signing the Agreement to Mediate if not done in the initial contact phase; confidentiality of the proceedings; and the opportunity for subsequent review by counsel of any agreement. Next, the schedule for the conference and any future meetings are determined with breaks, lunch, and additional rooms for private meetings. The process is described with a few simple rules of conduct: The parties will use common courtesy and allow each other to complete statements without interruption. They may use the writing pads and pencils provided to allow the preservation of thoughts but must allow the pads to be collected and destroyed at the end of each session.
This is the longest period in which the mediator is expected to speak and throughout this opening will encourage the parties toward a good faith effort of settlement and full disclosure to the mediator. All conversations and materials presented in the mediation session are confidential unless otherwise discoverable in a court.
Problem Determination: During this stage, each party will give an account of the facts and circumstances which lead to the dispute. Issues will be identified and summarized.
Generation of Options and Alternatives: The disputants, jointly or in separate sessions (Caucus) with the mediator, will identify areas of settlement. The mediator may summarize the results of the private sessions with each party and encourage options. A realistic assessment of the strengths and weaknesses of each party's own position will be the goal of this stage. Negotiations and decision making by the parties will continue unless the mediator declares an impasse and ends the mediation or continues the mediation in a subsequent session.
Clarification and Agreement Writing: The terms of any settlement will be written by the parties. If legal counsel is not present, the parties may elect to have the document reviewed by counsel and signed at a later date.
PENALTIES FOR FAILING TO REACH A SETTLEMENT?
There are no legal penalties for failing to settle at mediation. In states where mediation is court-ordered, there may be penalties for failing to attend the mediation conference and making a good faith effort to settle.
When the parties fail to settle, the case may be filed in an administrative agency or court of competent jurisdiction or set for the next action under the forum's procedure. Generally, the only report of an unsuccessful mediation is the referral back by the mediator to the court or agency for further processing.
QUALIFICATIONS OF A MEDIATOR
Most jurisdictions, administrative agencies, and dispute resolution companies require mediators to have a minimum of 20- 40 hours of general mediation training, a designated amount of mediation experience, either as an observer or a co-mediator with an experienced mediator and a college degree or higher. Applicants must submit proof of completion of training, experience, education, and letters of reference from persons who have used their service evaluated them as a co-mediator, and/or can attest to their character. Most forums prefer to train their mediators or to certify various companies or college programs for mediation training. Mediation training received from a non-certified or approved entity is often held to high scrutiny as to the level of competency of the trainers and their program.
In most states, a law degree is not required to be a mediator. However, states which allow nonlawyers to be mediators have more stringent experience and mediation requirements for the applicants. Four to six hours of training in Understanding the Judicial System of a state is generally a requirement for a nonlawyer or an out of state lawyer who seeks mediation certification in a state in which he/she is not licensed. This requirement is crucial when the mediator seeks court-appointed mediations. A similar requirement can be found in instances where an agency certification is sought.
GILLSVILLE LAW, LLC is able to host MEDIATIONS in their office.
We offer both English or Bi-Lingual Mediation Services.
CALL TO SCHEDULE YOUR MEDIATION TODAY
The Role of Mediation
In most civil litigation cases, mediation is an acceptable path for reaching an agreement in Georgia. The process, which involves a trained mediator instead of a judge or jury, helps the parties work out a mutually acceptable solution to their disagreement. Both parties must be agreeable to the process for it to be an option.
- The Mediation Process. When you utilize mediation services, the mediator normally meets with both parties to allow them the opportunity to present their issues. The mediator then assists the parties in reaching a resolution and reasonable settlement for their dispute.
- Mediation Scheduling. In some instances, mediation may be scheduled to resolve a situation prior to any court filings, which saves both parties time and money.
At Gillsville Law, our attorneys have years of experience as successful mediators. We can assist you with a variety of mediation needs. Contact our office to discuss questions you may have about mediation or to schedule your mediation consultation.