Mediation is a process which can benefit both clients and their attorneys. It provides a confidential setting in which the parties can discuss their problems, expected outcomes, and possible compromises which can suit both sides of a dispute. Mediation occurs outside of the formal courtroom setting, possibly saving both time and money for all involved.
At the Joshua Wilson Law Firm, we work hard to resolve as much as possible, thus saving time and money. In Missouri, mediation is required for your divorce, custody dispute, or other family law matter, make sure you have an experienced litigator that can ensure you obtain the best chances at achieving a settlement. Joshua Wilson is an experienced attorney with years of experience in negotiation and dispute resolution who knows how to effectively utilize mediation to achieve the best possible results in your case.
What is Mediation?
Mediation, as defined by the Missouri Supreme Court, is "a process in which a neutral third party facilitates communications between the parties to promote settlement." The neutral third party is called the "mediator" and is a person who is trained to help the parties discuss their needs, interests, and issues.
Mediation can be an effective and flexible way to allow both parties to be heard and express their concerns in a less formal, combative environment than that found in a typical courtroom proceeding. This flexibility allows the parties to attempt settlement, where each may agree to a solution that works in the best interest of all involved.
What Does the Mediator Do?
Mediation may range from an informal meeting of the parties to a more formal step-by-step process. There are six steps to a formal mediation:
- Introductions and Opening Statement
- Statement of the Problems by the Parties
- Gathering of Information
- Identifying the Issues
- Negotiation and Bargaining
- Coming to an Agreement.
Introductions and Opening Statement
The mediator introduces him or herself and ensures that all parties are present. Typically, mediators will ask that if children are present, they wait outside after introductions. The mediator then gives an opening statement, which outlines the role of those involved and informs the parties that the mediator is a neutral third party.
The opening statement sets forth the rules the parties are expected to follow during the mediation process. If attorneys are present, they are often given the opportunity to confer with one another, but ultimately the mediator will speak with the parties themselves.
Statement of the Problems by the Parties
During this step, the mediator gives each party the opportunity to give his or her side of the story without interruption. This may occur while both parties are together or, depending on the circumstances, the parties may be in separate rooms following the opening statement. This step allows the mediator to hear unrestricted the parties' concerns and desires. It also permits the mediator to get an idea of the emotional state of the parties as well as the unique situation involved.
Gathering of Information
The mediator is usually given information about the case prior to the start of the mediation. However, this is the mediator's opportunity to gather more specific information about the case from the parties themselves. During this time the mediator asks open-ended questions intended to gather as much information as he or she needs to help foster a future resolution. Mediators often repeat back what has been said to them for both clarity and to establish a connection with a party.
Identifying the Issues
During this step, the mediator distills what he or she has learned from the parties and seeks to identify what the specific concerns of the parties are, where they differ, and where they are the same. If there are issues upon which the parties seem to agree, the mediator will often start here first to create common ground.
It is at this step that a mediator is likely to ask each party, "Are you interested in reaching any kind of settlement?" If a party just does not feel like trying, it is hard to negotiate a potential resolution. Parties that do want to find common ground can proceed to the next step. If a party expresses no interest in reaching a settlement, the mediator can attempt to show what a party has to gain from compromise to foster negotiation.
Negotiating and Bargaining
A mediator may use several different methods during this step of the mediation process. The mediator may talk to the parties together or apart. The mediator may proffer certain suggestions to the parties, like compromises they could agree upon to reach a settlement, allowing each party to respond and modify the proposal as they see fit.
When a mediator talks to parties individually, it is known as a caucus. A caucus is especially helpful when the parties do not get along well, which is common in divorces and other family law disputes. These private sessions are confidential and allow each party to offer suggestions and critiques without fear that their emotions will negatively impact the proceedings because the opposing party is present. The goal of the caucus is to find common ground, explore options, and find possible solutions.
Coming to an Agreement
Assuming the parties have been able to negotiate an agreement, the mediator now turns to help the parties take the necessary steps to put those agreements into action. For example, a mediator may have facilitated an agreement about the distribution of marital assets, such as furniture. It is one thing for parties to agree to an "equal split," but quite another to put that agreement into action.
The mediator can help the parties outline specific methods for the division of property that is agreeable to both. This important function prevents the agreement from falling apart at a later date and reduces emotional friction for all involved.
Mediation or Litigation: The Pros and Cons
In any divorce or other family law matter, it is common for clients to ask themselves if mediation is even worth it. They often think they have not gotten along before, can never agree, so why would this be any different? The pros and cons are set out below.
Litigation is an adversarial process by nature. It is plaintiff versus the defendant, with each side arguing before a judge or magistrate. The purpose of litigation is for the justice system to decide upon disputed matters on which the parties simply cannot agree. Litigation can be time-consuming and expensive if it goes on for a long time. It requires both parties to appear in court, give testimony, present evidence, and await a decision.
The litigation process involves discovery, which is the gathering of information through the legal process. This requires submission of documents, tax statements, medical records, child records, and a large variety of other information which may be required to decide your case.
Litigation can also take up an enormous amount of your time. There are often motions before you ever reach trial. A judge or magistrate must take time to consider each of those motions. Further, pretrial hearings to decide issues related to trial may be required. At trial, depending on the facts of your particular case, litigation could take a day, a week, or more. This is time out of your life, and money out of your pocket.
However, sometimes litigation is what it takes to get the job done. An advantage of litigation is that a decision is made by an independent judge or magistrate which the parties must now follow. In cases where the parties cannot reach an agreement, this may finally resolve the case.
The benefits of mediation are many, and include:
- Your specific needs can be addressed and unique solutions may be created to help fill those needs. For example, disputes over the marital residence in litigation often result in the sale of the home and a split of the proceeds. However, in mediation the parties can agree to a living situation which better reflects their needs and the needs of any possible children.
- Participants can learn resolution skills during the mediation process as a result of the mediator's guidance. When individuals see negotiation methods used they may be able to implement those skills in their daily lives.
- The parties do not have to get along to be involved in mediation.
- Mediation is confidential. This ensures you can be open about your needs without the fear of legal or emotional repercussions. Openness and honesty in mediation can often lead to resolution where it seemed impossible before.
- Mediation can be used during the course of litigation. Even if you have already initiated litigation, mediation may settle the case without the need for a trial.
- Mediation is confidential and anything learned at mediation cannot be used in court unless it is discovered independently of the mediation.
- You are not technically bound to any agreement reached in mediation. If you change your mind afterward, you are free to do so.
- Mediation takes much less time than litigation and usually saves money.
Mediation does have its cons as well.
- Mediation is not always successful. Unsuccessful mediation usually means that going to trial is imminent.
- It costs money. (usually about $200-$250 per person)
- Mediation cannot settle issues that pertain to the interpretation of a specific law.
- Concerns may arise about the enforceability of an agreement reached at mediation.
Although meditation has its pros and cons, strategically preparing for your case for mediation can oftentimes result in a favorable settlement.
Consult with an Experienced Attorney
Whether mediation, litigation, or a combination of both is the best fit for you is best decided with the advice of experienced Cass County attorney Joshua Wilson. His years of experience in divorce, custody disputes, and other family law matters in Missouri will provide you with the necessary information to meet your legal needs.
Contact the Joshua Wilson Law Firm today at (816) 331-9968 for a consultation.