Frequently Asked Questions
1. What is mediation?
Mediation is a negotiation assisted by an impartial third party, the mediator. The mediator structures the discussion, ensuring that all issues are addressed in a fair and constructive manner. Unlike a judge or an arbitrator, the mediator does not make decisions for the parties but helps them to make good decisions for themselves. Mediation is a voluntary process, and each party is free to stop if the process does not seem productive. The basic benefits of mediation are that it allows the parties to maintain control of the decisionmaking process, to explore creative solutions which can benefit both parties, and to save money. When mediation works, it is usually far less expensive than litigation.
2. How does mediation work?
Mediation is a flexible process. When I mediate, I try to fit the process to the parties' needs. In a typical divorce mediation, I will first meet with both parties together, if that is comfortable for them. We review the basic rules of mediation, and I gather some basic background information. We then discuss each of the major topics which need to be resolved, usually consisting of a parenting plan, division of assets and liabilities, and support. We formulate ideas for working towards solutions in each area, and we agree on homework that the parties can do before the next session. One goal is to help the parties accomplish as much as possible outside our sessions, in order to minimize cost and proceed efficiently. We also address any pressing issues. At the end of the first session, I usually meet with each party separately, to see how each is feeling about the session, and whether there are any special concerns. In subsequent sessions, we return to each topic, moving steadily towards solutions in each area. I use a method known as principled negotiation, in which we explore the parties interests and generate options which will satisfy as many of those interests as possible.
3. Is mediation binding?
Mediation agreements can be made binding when they are reduced to writing and signed by the parties. When the parties reach agreement, my job is to reduce the agreement to writing. In a divorce, this is called a Marital Settlement Agreement (MSA), or Stipulated Judgment (SJ). The MSA or SJ can be reviewed by the parties' separate attorneys. When the parties are satisfied that the MSA or SJ accurately sets forth their agreement, the parties sign it and it can then be submitted to the court for approval. In rare cases, the court will direct the parties to make changes to the MSA or SJ, but usually it is accepted and approved by the court without comment. In nondivorce cases, I can prepare a contract that would make an agreement enforceable.
4. How long does mediation take?
There is no way to predict how long a mediation will last, due to multiple factors such as the complexity of the issues, the level of conflict, and different parties desires to speed up or slow down. On average, however, most divorce mediations can be resolved in three to six sessions of one and one-half to two hours each. Sessions are generally scheduled two weeks apart to give parties time to do homework between sessions. Again, scheduling is up to the parties, and the process can proceed as quickly or as slowly as the parties agree.
5. How much does mediation cost?
The cost of a mediation depends on how long it takes. My current hourly rate is $300, although I do reduce my fee in appropriate cases. Please ask me about this if my regular rate seems unaffordable. For the "average" mediation described in Question 4 above, my fee would be between $1000 and $2500, depending on the number of hours we spend in mediation. When the parties reach agreement, I prepare the MSA or SJ (see Question 3 above), which I can usually do in about two hours. I can also prepare all of the remaining paperwork to obtain a divorce and submit it to the court for the parties. I charge a fee of about $600 for this service. Thus, mediation can be far less costly than the average litigated divorce, which typically costs many thousands of dollars. I do not require a retainer, but I do need to be paid at the end of each session by cash, check or credit card, unless other arrangements are made.
6. Should other attorneys be involved in the mediation?
My clients frequently do not want to consult with attorneys, generally out of concern that the attorneys will interfere with the process or cause disagreement. Although I do not require my clients to see separate attorneys, I do think it is a good idea, and the ethical standards to which I subscribe require me to strongly urge clients to at least consult with attorneys. I can provide the names of attorneys who are supportive of the mediation process and will not derail it. The advantages of seeing separate attorneys are that they often have good ideas for solutions which we might not think of on our own. Also, an attorney can give you legal advice, which means that he or she can help you figure out how any particular solution will affect you in the future. Although I am an attorney, when I act as a mediator I am only allowed to give you legal information, not legal advice. Thus, I can describe the law generally to you, but I can't tell you in any detail how the law or any particular solution will affect you as an individual. Finally, your attorney can review the MSA, to make sure that it accurately sets forth your agreement.
7. Is mediation confidential?
Mediation is confidential and protected under Oregon law. Thus, mediation discussions are private, and cannot be disclosed to third parties or in court. Also, the mediator cannot be called as a witness in any court proceeding. The basic goal of this law is to make parties feel comfortable making candid offers of settlement which cannot later be used against them. There are exceptions to confidentiality, which we discuss at our first meeting.
8. What are the advantages of mediation?
Mediation allows the parties to retain control of the decisionmaking process, rather than turning it over to third parties. Mediation is efficient, in that the communication takes place directly between the parties, rather than being filtered, for instance, from Husband to Husband's attorney to Wife's attorney to Wife and back again. This efficiency usually means that mediation is far less expensive than litigation; much less attorney time is involved because the parties do more themselves. Mediation is private; the parties' history is not discussed in a courtroom. Mediation is creative. Frequently, the parties arrive at solutions which give each of them more of what they want and are tailor-made for them, rather than being cookie-cutter solutions imposed by a judge. There is also evidence that parties are more likely to abide by agreements that they create, rather than agreements which are imposed upon them by a judge.
9. What are the disadvantages of mediation?
One basic disadvantage of mediation is that parties may not be able to reach agreement. They will then have to pursue their next best alternatives, which are usually to let attorneys negotiate the dispute or, in the worst case, to try the case in court. Even when a mediation fails, however, it is seldom a total waste of time. Often, parties will be able to reach agreement on some issues, thereby narrowing the number of issues to be resolved by other means. Also, much valuable information is usually developed in mediation which can be used to ultimately resolve the case. Thus, the mediation will frequently pay for itself even when it fails. The other basic disadvantage of mediation is that one party may not be as good a negotiator as another party. There is some risk that a party can be taken advantage of in a mediation. As a mediator, I am quite vigilant about this, and I use many techniques to make sure that noone is taken advantage of. I believe parties should be aware of their rights and responsibilities, and I inform them about these. Also, I urge people to consult with their attorneys as frequently as they need to, and to bring attorneys to the sessions or have them available by phone. I can put parties in separate rooms if parties feel intimidated by the presence of the other party. Finally, if I believe that a party is being taken advantage of, I will terminate the mediation.
10. How can I learn more?
If you want more information, you can read sections of the Family Law Mediation Article posted as a main page on this website. This is the standard article for Oregon attorneys on Family Mediation which I co-authored at the request of the Oregon State Bar. My website also has an extensive library of divorce, family, and mediation articles. But the best thing to do is to give me a call or send me an email. I am always happy to talk about mediation with prospective clients, other attorneys, students, or anyone who is interested in mediation. I strongly believe that it is a powerful tool which can help people safely and creatively resolve their disputes.
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