Information for Clients
Kathleen O'Connell Corcoran, MS, NCC
THE MEDIATION CENTER
440 East Broadway / Suite 340 / Eugene, OR 97401
WHAT IS MEDIATION?
"Mediation is an alternative to violence, self-help, or litigation....It can be defined as the process by which the participants, together with the assistance of a neutral person or persons, systematically isolate disputed issues in order to develop options, consider alternatives, and reach a consensual settlement that will accommodate their needs. Mediation is a process that emphasizes the participants' own responsibility for making decisions that affect their lives. It is therefore a self-empowering process" (Folberg, Jay and Taylor, Alison, Mediation: A Comprehensive Guide to Resolving Conflicts without Litigation, Jossey-Bass, 1984, pp. 7-8).
HOW LONG WILL MEDIATION TAKE AND HOW MUCH WILL IT COST?
All mediating clients are understandably interested in and concerned about how long mediation will take and how much it will cost. My response is to say it depends. It depends entirely on how long it will take you to reach what you perceive to be your fairest and most constructive agreement possible.
Mediation is task oriented with a goal of reaching agreement. This agreement may be reached in a very short time in situations where mediating parties are already at a very high level of agreement and are able to specifically describe that agreement. In situations where there are a number of "open issues" (either disputed issues or issues that have not been well considered), the mediation will take a bit longer and, therefore, cost more.
My experience is that a comprehensive separation or dissolution of marriage mediation generally requires between three and six approximately two-hour meetings, and three to ten hours of paperwork, with a cost ranging from $400 to $2000. Clients with a limited number of open issues and the ability to communicate well, will fall at the lower end of this scale. Clients with many open issues who have a hard time separating emotional and relational issues from substantive issues may find themselves in the upper ranges of this scale.
WHY IS MEDIATION SO EXPENSIVE?
Although studies indicate that mediation costs less than the costs associated with resolution through attorney negotiation or litigation, it may be more useful to stress the value of mediation rather than its somewhat reduced cost.
The reason to stress the value of mediation is that, in addition to the financial and emotional savings of mediation, participants are able to fashion their own agreement which is sensitive and responsive to perceived equities and desired outcomes. The result is that the work product of mediation, the Memorandum of Understanding, provides a comprehensive resolution in terms mediating parties understand and believe in. This results in a commitment to the agreement which has been shown to enhance future compliance by providing a cooperative atmosphere for performance of the terms of agreement.
WHAT IF WE ALREADY AGREE ON EVERYTHING?
I say "congratulations." I also feel I have an ethical responsibility to be sure that your agreement is based on informed decisionmaking and is reasonably comprehensive. I will, therefore, ask your cooperation in completing some forms and providing documentation to ensure this.
WHAT ARE OUR CHANCES FOR SUCCESS IN MEDIATION?
My best estimate is that over 90% of my mediating parties reach comprehensive resolution, with at least half of the remaining 10% reaching at least some significant substantive resolution (e.g., parenting arrangements or financial resolution, but not both). I find this success rate to be high and believe the reason for this is my screening out clients whom I do not believe will be successful in mediation for whatever the reason, and having motivated clients who recognize the opportunity mediation provides.
WHAT IF WE DON'T REACH AGREEMENT?
In the event no agreement is reached in mediation, we can discuss other settlement options. All mediation discussions and materials are strictly confidential and shall not be admissible in any later court or other adversarial proceeding. No communication, written or oral, should therefore ever be held against you. Perhaps the greatest risk of an unsuccessful mediation is the cost of the unsuccessful effort. Recognizing this to be a valid concern, even unsuccessful mediating parties often seem to obtain substantial benefit from having had the opportunity to fully communicate and by having given it their best effort prior to recognizing that attorney negotiation or litigation may be inevitable. Studies show that even unsuccessful mediating parties typically still recommend mediation to a friend. As a mediator, I will always let clients know if, based upon their expressed interests or communications, I feel an impasse has been reached to avoid additional unproductive discussions.
WHO PAYS FOR THE MEDIATION?
Responsibility for the mediation fees needs to be decided between mediation participants. My personal preference is that, to the extent it is possible, each party have some significant financial responsibility for the fees. I find this promotes a balanced commitment to steady progress in mediation. The key, however, is that the parties themselves agree upon the division of the fee in whatever way seems fairest and most appropriate.
WHAT ABOUT INDIVIDUAL ATTORNEYS?
I have an ethical responsibility to advise each mediation participant to have any Memorandum of Understanding reviewed by outside counsel prior to signing that document. The extent to which you utilize individual legal counsel is, ultimately, a matter of your choice. In practice, I have found that it can be extremely empowering for individual mediating parties to obtain an hour or two of individual legal information and advice from an attorney. This legal consultation tends to enhance mediating parties' comfort and confidence in the mediation process and also commitment to the fairness and quality of the ultimate agreement.
Often this information and advice is best obtained immediately prior to the mediation, as part of a one-half to one-hour initial consultation with individual counsel, and then through that same attorney's review of the contemplated Memorandum of Understanding when a first comprehensive draft is available. I find that it is best not to wait to the very end of the mediation process when there are expectations of finality, to have this review. It seems best to have individual attorney review while the agreement is recognized to still be in draft form. This allows your attorney's suggestions to be easily incorporated into the finalizing discussions and document.
WHAT ABOUT OTHER EXPERTS?
It may make abundant sense, in a particular case, for mediating parties to jointly retain mutually trusted experts at additional cost for specific reasons. For example, in many situations, it is necessary to obtain a credible appraisal or other valuation of real property, a business, or the like. It is also not uncommon for mediating parties to choose to jointly consult with an accountant or other tax expert for purposes of maximizing the tax benefits of their agreement. My experience is that constructively designing the financial provisions of an agreement to obtain maximum tax advantages can, in most situations, pay for the mediation and more. Mediating parties with parenting concerns may also find it beneficial to obtain the impartial thoughts and recommendation s of a mutually acceptable child development specialist. I have also found that, when faced with difficult legal issues, mediating parties sometimes choose to jointly retain an additional outside impartial attorney who, based upon an agreed-upon set of facts, can render an advisory non-binding opinion as to how that attorney anticipates a court would likely resolve the presented issue.
WHAT CAN I DO TO ENSURE A SUCCESSFUL MEDIATION?
Perhaps the most important thing any mediating party can do to ensure a satisfying and successful mediation experience is to prepare for the mediation discussions by seeking clarity as to individual desired outcomes and perceived standards of fairness. Being able to listen to the other party's point of view, even when you don't agree with it, will allow you to develop options that meet both of your needs. It is in the ability to see the whole picture from both perspectives that a mutually satisfying agreement will arise.