What is mediation?

Mediation is a process through which participants in dispute explain their positions, identify the specific issues which are causing disagreement, and seek common ground.  This is done in a safe environment where each party is treated with equal respect.

Is mediation limited to certain disputes?

With few exceptions, mediation can be used to address any dispute as long as the disputants have the authority to negotiate a settlement and do so in good faith.

Can I be required to mediate?

Mediation is usually voluntary.  Nobody can be required to participate in mediation, unless required to do so by a court. In either case, the decision to reach any agreement is totally under the control of the persons in dispute.  Any party in the mediation may decide to end the mediation at any time, for any reason.

Who “runs” the mediation?

The process is facilitated by a “mediator” who has both training and experience in helping people resolve their disputes.  Before the session begins, the mediator will explain the process, explain the rules, identify the expectations of the persons in dispute, and answer any questions regarding the mediation process.  During the mediation, the mediator “controls” the process but not the discussion.  The mediator ensures that each party has an equal opportunity to be heard.  The mediator also ensures that the discussions are respectful and relevant to the dispute.  If a party is disruptive, threatening, or disrespectful, the mediator may conclude the mediation.

Whose side is the mediator on?

The mediator does not influence the mediation to the benefit of any disputant.  The mediator is a neutral party.  In the early moments of the session, the mediator will seek to identify any personal or business relationship which might appear to jeopardize this neutrality.  Anything that is identified as a potential conflict will be discussed openly with the disputants and the session will not continue unless all agree.

Do I need a mediator who is also a lawyer?

Mediation does not focus on a legal definition of who is “right” or “wrong.”   People from a variety of backgrounds, with the appropriate specialized training and experience, are fine mediators.  You should select a mediator based on his or her mediation training and mediation experience.  Some attorneys have these qualifications and are excellent mediators.

Do Mediators observe ethical standards?

All members of Capital Mediation Associates are members of and subscribe to the ethical standards of the Association for Conflict Resolution (ACR). 

Can the mediator decide what the outcome will be and make it binding on
the disputants?

Mediation is different from binding arbitration in this respect.  The mediator’s role is to assist the disputants to reach their own agreement.  The mediator does not act as a judge and will not order any party to do anything or require that anyone agree to any proposal.  The mediator will not provide legal, medical, financial or personal advice.

Are all statements made during mediation confidential?

With a very few exceptions, everything said during mediation  is confidential and the mediator may not be required to divulge anything said, even to a judge or any other official.  The disputants are encouraged to maintain confidentiality in order to promote open and honest communication.  All mediations facilitated by Capital Mediation Associates are conducted under Ohio’s Uniform Mediation Act.  

What are the outcomes of mediation?

The goal of mediation is to resolve the dispute completely.  If complete resolution is not possible, a partial agreement may be reached.  Sometimes no agreement is reached but the parties gain a better understanding of each other’s perspective.  The mediator will assist the parties in documenting any agreement made by the parties, even if the agreement is a partial one.

Is the agreement enforceable by a court?

The mediator’s responsibility is to document accurately and clearly any agreements made by the parties.  The mediator will not provide legal advice regarding enforceability.  Each party should fully intend to perform all responsibilities required of them by the agreement.  Only a court can determine the legal enforceability of any contract.

I know I am right and the other party is wrong.  Should I just file a lawsuit and let the judge decide?

During mediation, the people directly involved in the dispute are in control of the outcome and can resolve their differences in almost any way they jointly agree.  When a complaint is filed in court, the judge will be in control of the outcome and will make the final decision.  Frequently the law allows the judge limited flexibility in the final solution.  The courtroom setting provides little opportunity for the parties to discuss and resolve their issues.

Am I required to have an attorney with me at the mediation?

The parties directly involved in the dispute are encouraged to speak for themselves. Parties have a right to consult an attorney and attorneys are welcome at mediations.  The mediator should be informed in advance so that other parties can be made aware of the participation by legal counsel.  During mediation any party has the right to suspend the session and consult with an attorney.

Is mediation appropriate in divorce and other situations involving close personal relationships?

Issues such as the allocation of financial assets, spousal support, and shared parenting are areas that frequently need to be resolved.  Mediation can help but is not a substitute for counseling.  Counseling and mediation can complement each other as the process of ending the relationship moves forward.

Can mediation be used in the workplace?

Since we may spend much of our life with co-workers and supervisors, there is a very good chance that we may experience a serious disagreement.  Because mediation is facilitated by a neutral third party, it is more easily accepted by a co-worker than when a similar process is facilitated by a company superior or subordinate.  The neutral mediator comes to the dispute without an obligation to anyone except the parties in dispute.

What is the most important thing I can do to prepare for mediation?

The most important thing is to come to mediation with a positive attitude toward resolving the dispute.  Don’t focus on trying to “beat” the other party, but instead consider different ways in which the dispute might be resolved to your satisfaction.  When applicable, you should also spend some time preparing or reviewing any documents which you would like the other party to see that explains your point of view.

Is mediation expensive?

When compared to initiating, preparing for, and participating in a trial, mediation can be much less expensive in terms of money, time, and emotional investment.  While many lawsuits take years to complete, an agreement through mediation may be reached in only one session (depending on the dispute) and involve significantly fewer people.  The more prepared and cooperative the parties are, the better the chances are for a swift resolution and the resulting lower cost.

How are parties charged for the mediator’s services?