Mediation is an alternative to litigation when disputes arise. Mediation is also known as arbitration. Mediation does not offer any guaranteed or specific results. Mediation is only a means of coming to a decision about a running dispute, keeping the interests of all parties or people in dispute. Some advantages of using mediation as a way of resolving disputes are: Mediation is comparatively much less expensive compared to litigation or any other ways of fighting. Settlements are rapidly reached compared to courts where dates are given out by the years. Appeals in a court would take a few years to come to hearing. Comparatively mediation becomes a better alternative and saves time by coming to rapid decisions without wasting the precious time of parties involved. Courts are generally looked upon as a third party. Most people feel that decisions handed out by courts or third parties are not to their satisfaction, whereas mediation is a all participatory process, so the parties feel that they have come to decision mutually and are satisfied. Since the parties are satisfied, compliance to the decisions is more. Mediation becomes more popular due to this fact. Mediated settlements are capable of handling legal and extra-legal issues. Mediated agreements are known to cover many procedural and psychological matters that need not be susceptible to legality. Custom made settlements are possible depending upon circumstances. People generally are of the feeling that they can handle their own issues than through representatives like lawyers. Due to this personal touch in reaching the solution compliance becomes a personal commitment and hence results in personal empowerment and better solution. Since mediation through professional mediators take place in an amicable manner, the decisions reached do not tend to damage future relationship between the parties. Even if the termination of a relationship is on the cards, it happens in a more amicable way leaving room for future endeavors. Since decisions are arrived at agreement o all parties, they are more workable and realistic as per the circumstances. The decisions are more tailor made and accounts for more compliance.
Should I take them to court? What are my options? Well, lawsuits have their place and function, but in some instances, such as on-going relationships, lawsuits is like trying to remove a fly from a person’s head with a hatchet. I am often asked what are the benefits of resolving a dispute through mediation versus traditional litigation. Here is a list of benefits that mediation can provide. It’s A Reality Check. Individuals, business, and organizations often use the tactic of playing deaf when you have a complaint, hoping that you will lose interest over time and go away. Mediation is the bridge between direct negotiation and the legal system. It lets the other side know that you are serious and that you want them to come voluntarily to the negotiating table while they still have a chance. By asking them to attend mediation, you are building them a golden bridge towards agreement and all they have to do is choose to walk across. It’s Safe. The legal system awards unfair and aggressive tactics, making the playing field unequal. In mediation, you are in complete control throughout the process. The mediator will not permit any unfair tactics, so the playing filed is equalized. Mediation is voluntary, so you always reserve the right to proceed with litigation if you want. It’s Affordable. Hiring an attorney can cost thousands of dollars for even a simple case, without a firm guarantee of proper resolution. Mediation provides an affordable alternative to costly litigation. It’s Fast. Lawsuits can take years off your life in waster time, frustration, money, and emotional pain. Mediation usually takes only a fraction of the time that the legal system takes. It’s Confidential. Cases handled in court are typically open to the public, so anyone can listen in on your private life. Confidentially in a mediation is protected by law, so you can resolve your dispute with privacy and with dignity. It’s Empowering. Traditional litigation is hostile, adversarial, and aggressive. It focuses on assigning blame and punishment. Mediation doesn’t assign blame or punishment—it seeks to invent solution to a mutual problem through cooperative problem-solving. It’s Emotionally Healthy. The legal system rarely takes the psychological or emotional factors of either party into account. Litigation is cold, hard, and uncaring. Both parties are instructed not to talk to each other and neither side gets to voice their concerns. Mediation uses the psychological power of empathy to create mutual understanding between parties to address concerns, promote emotional healing, and preserve ongoing relationships.
Any divorce that involves children and child custody can become a heart wrenching battle between parents. A divorce which is litigated, rather than mediated, almost guarantees a significant wedge between the parties and their children. To its farthest extent, divorce litigation can also end in violence. On October 12, 2011, a father, battle-weary from a custody dispute, went on a shooting rampage that left eight people dead, including his target: the mother of his child and his ex-wife. The incident, also known as the “Seal Beach Salon Massacre”, was the most extreme and violent manifestation of divorce litigation in recent years. Not to mention the countless numbers of restraining orders that divorcing spouses file against each other during litigation.
The problem with divorce litigation is that it is adversarial in nature; it encourages conflict and disagreement. Before a judge makes a decision, parties have every incentive to strategize against the other party until they believe they’ve won. Even after most judgments, parties remain dissatisfied and continue the cycle of hatred towards their former spouses.
Divorce mediation, on the other hand, focuses on resolving disputes, rather than on exacerbating conflict. Mediation creates a cooperative environment for both parties to communicate openly and safely. A mediator is a neutral third party to the divorce who works with both parties to reach a satisfactory agreement. This is a stark contrast to the adversarial nature of litigation. A mediator will help you reach an amenable divorce agreement with your spouse as quickly as possible; whereas, many litigators will prolong the process or do whatever is necessary to exhaust the other side’s resources. Mediation requires respect, cooperation, and patience—all of which are stepping stones to an efficient and peaceful divorce.
From a practical perspective, mediation will also save you time, money, and energy. Mediation usually takes three hours of mediation time with the parties, along with the time it takes to disclose the parties’ financial statements, draft a divorce agreement, and file a Petition for Divorce with the court. Mediation will save you time and billable hours from discovery, pleadings and motions, hearings (which are subject to the judge’s limited time availability), trial preparation, and frustrating 4-way conferences.
On average, a mediated divorce will total $2,000-$7,500; whereas, a litigated divorce can cost from $10,000 to $60,000 or more. When you and your spouse come to a mutual agreement, you will both walk out of mediation with a better relationship and create a healthier living and emotional environment for your children. Most importantly, mediation helps you build a foundation for future cooperation with your spouse when it comes to your children.
He would meet me at the door and lead me into his study. . . After sitting down there was always a silence—not a tense silence, uneasy as between two people who were not sure of each other, but a silence of expectation. This was not consciously agreed between us. It was a flow of peace and trust forming a prelude to speech. The silence was the silence of communication. (Aubrey Hodes, reporting on his conversations with Martin Buber, 1972.)
Mediation is the art of facilitating dispute resolution through a dynamic process by which a neutral, third party manages communication and negotiation between parties in conflict.
The mediation process is governed by the belief that the failure of communication serves as the number one basis for continuing conflict. The mediator’s primary job is therefore to cultivate a “flow of peace and trust” that is the precursor to effective communication, by bridging the gap where trust collapsed in the first instance and could not be restored by the parties without neutral, outside help.
On this bridge, expertly suspended and held by the mediator between the parties in conflict, the parties have an opportunity to meet, during the space of the mediation, not just to ‘talk’ but to effectively communicate.
The mediation process thus creates a safe meeting space where the parties are empowered to
* share with one another their opinions on issues and the important values that each holds that serve as the bases for those opinions;
* uncover previously unfathomed means of maximizing material, emotional, physically, psychological, and/or spiritual benefits for all involved;
* explore rich opportunities for their own growth and healing; and
* begin to establish or restore peace, within themselves as well as between one another.
We all know divorce can be extremely time–consuming, very expensive, and mentally and physically exhausting. But divorce can also be an amazing source of motivation an initiator for growth and a transition to a place of greater awareness. And sometimes this transition has to be expedited with the aid of mediators or lawyers.
Transitioning with the help of a mediator is a less expensive alternative that can save time, money and exhaustive stress. Mediation is the path of least resistance in which you and your partner can sit with a neutral negotiator to develop a practical and mutually agreeable resolution for your “divide.” With a mediator, an agreement can be made and divorce papers drawn up and processed for under $100. Many states will require a lawyer to sign off on the papers though.
If no resolution is met through the mediation process, the next door to open is to the legal office. Here are a few recommendations:
Seek legal counsel early. Understanding your legal rights and the laws brings clarity. Find a lawyer who is respected in the community. Not all attorneys have the same qualifications and mastery in family law. The goal in finding a lawyer is to secure the best possible legal advice, not to find someone who agrees with you. Shark teeth, computer brain, spine of steel, heart of gold and a dash of humor are useful traits in a lawyer.
Document everything. You are paying your lawyer to manage your case, so listen to their advice and allow all correspondence to filter though their legal screen. Watch the contents of e-mails and avoid making off-the-emotional-cuff remarks because they could come back to bite you.
Use your lawyer as a resource. Ask if they have any recommendations for family psychologists, court parenting classes, and mediation courses and literature. With a pending divorce, you’ll soon realize many others have done this before you. Listen to all the advice and take what feels most appropriate for your situation. Remember your soon-to-be former spouse is also the person you fell in love with and married, and may also be the mother or father to your children — with whom you will share a lifetime. This divorce is not an isolated event; it’s a lifetime process. If there are children involved, see the process through their eyes to keep a broad perspective, so you can arrive in a place of greater awareness.
With this greater awareness comes the opportunity, if you choose to marry again, to enter this new relationship empowered, educated and prepared. If you do decide to reenter the life of matrimony, consider a pre-nuptial agreement. It won’t necessarily save you from all the hassles of divorce, but it will give you time to view the maze of marriage from above. A pre-nuptial agreement will offer you an efficient way out if needed. Love is binding, but don’t allow it to be blinding. Marriage is a business deal laced with emotion, so let it be thought out, signed and agreed upon while the two of you are still sleeping in the same bed
The law is all encompassing. Its protective mantle extends to every human being regardless of race, color, religion, gender, and social status. Its voice should therefore be heard by everyone and its guiding light should be readily accessible especially to those who need it the most. Mindful of this principle, one is easily inspired by the efforts students, barristers, and solicitors are putting into the Street Law Project. Spreading the word of justice to the lay people at the grass roots level is not only a challenging endeavor but is also a greatly rewarding experience.
In line with the UK’s Street Law program, some schools include mediation assistance as one of their activities through the Mediation Friends Project. This is a pioneering initiative in which students are trained in mediation so they can provide free support to otherwise unrepresented parties in mediation. The project’s goals are to provide assistance to the unrepresented parties and to promote the use of mediation as a form of alternative dispute resolution.
This undertaking is probably one of the most important aspects of legal advocacy that must make its solid mark on public awareness especially with the birth of the Woolf reforms which revolutionized the civil law system in England and Wales. These reforms paved the way for the promotion of the Alternative Dispute Resolution which includes Mediation as one of its primary measures.
Mediation, as an alternative dispute resolution scheme, is the legal system at its most practical application. It brings the law straight into the heart of the community and by doing so, introduces a new image often unseen by the public. By providing venue for the people to settle their disputes amicably, mediation has transformed the spectator into an actual participant in the administration of justice and in order to satisfy its ends, assistance from the learned therefore becomes necessary.
Sadly, the law with its vast complexity is viewed by many as a punitive fault-finding mechanism which favours the rich and the powerful more than the ignorant and the underprivileged. More often, people tend to avoid litigation due to the financial burden and too much time required by the process even if it means sacrificing their very own rights and interests. It is for this very reason that the Alternative Dispute Resolution (ADR) is encouraged by the courts as a matter of course pursuant to the legislative mandate enshrined in the Civil Procedure Rules. Though it does not involve extensive knowledge of the law, disputing parties are still entitled to sufficient advice and guidance for the protection of their rights. Mediation and the other forms of ADR never guarantee fair settlement if a party is unaware of his options and the lawful extent of his claim. An abusive party could easily tilt the process in his favour absent any legal and informational support for the other specially with the prodding of an enterprising lawyer.
Unrepresented parties are likened to a litigant in person who is seen by most judges as a problem. According to the Judicial Studies Board Journal Issue 15 published in 2002, litigants in person often jeopardize their own rights due to lack of knowledge of procedures and legal remedies available in their case. They may make point, which to lay people appear “right”, but which have no foundation in law.
Through extending assistance to the unrepresented, the Mediation Friends volunteers have leveled the playing fields thus ensuring fair settlements among parties in dispute. Consequently, they have also contributed to the much-needed de-congestion of court dockets thereby giving more opportunity for the courts to attend to more pressing matters not otherwise subject to settlement or such other cases no longer falling within the ADR. As future officers of the court, law students are no stranger to the idea that the management of cases do not lie exclusively in the hands of the judges. Lawyers are indispensable players in the whole legal drama. It becomes an integral part of their role to assist the court in advancing justice in a less burdensome and less costly manner. As such, the Civil Procedure Rules urges the court, and of course its officers, to encourage the use of alternative settlement of disputes.
Mediation covers almost all areas of day to day human activity including personal, commercial, and business relations among members of society. As such, failure to satisfy its goal, does not only entail economic damage but it also brings about societal dysfunction. Businesses against their clients, employers against their employees, members of the family not seeing eye to eye. All due to disputes which can be settled in a manner less adversarial and more akin to the philosophy of man as a social being. Not only do the volunteers contribute to the front-line delivery of justice but they also share in the struggle to save the community from the economic, financial, and sociological strains of avoidable litigation.
The Paths to Justice Scotland research, reported the findings of a large-scale survey exploring the public’s preferences and motivations in taking action when experiencing a large range of everyday problems. This research indicated ‘a widespread feeling of ignorance about legal rights that exists across most social groups’. For example, while only 3 per cent of respondents who had experienced a problem did nothing to resolve it, the survey found that over half of those taking no action did so because they thought nothing could be done. In addition, of the 32 per cent who ‘self-helped’, that is who took some action to resolve their problem but without outside help, one in four considered seeking advice, but chose not to. The most commonly cited reasons for not seeking help were that the respondent did not think anything could be done or that advisers would not be able to help them.
The Mediation Friends project thereby offers a unique opportunity to would be litigants. Aside from providing information and options, it opens the door of hope in the complex arena of civil procedure. However, there are still a lot of things to be done considering that the project is still at a very early stage. Training in mediation and actual practice through free public assistance is indeed a big step forward.
According to an article written by Michael Frisby and Zoë Morrison published in the 2008 issue of the Commercial Litigation Journal, ‘The introduction of pre-action protocols and a greater willingness by the courts to penalise parties that resort to court action other than as a matter of last resort has greatly changed the way disputes are handled. With the emphasis on front loading of costs and early preparation leading to early settlement negotiations coupled with Par 36 offers, the reforms have been very successful in promoting early settlement of disputes, often without proceedings being issued.’
In the context of commercial litigation, the ADR has been successful so far. However, due to recession and the economic downturn, it is observed that litigation has become a more attractive prospect for some. The article continues to say that ‘during previous downturns in market conditions, litigation has been a source of increased activity in law firms as businesses fight to hold onto what they have or utilize it as a cash flow tool to avoid paying money out.’ From these observations, it is clear that mediation advocacy is put to the test during periods of economic anxiety. It is during these hard times that the volunteers’ dedication to the cause has become indispensable.
In the workplace, disputes are a common occurrence and according to Bettina Rigg, partner, Bond Pearce LLP and accredited mediator, ADR Group, and Eve Pienaar, senior workplace mediator, ADR Group, in their article “Workplace mediation: an overlooked method of dispute resolution”, ‘the use of mediation to resolve workplace disputes has not yet come of age’.’ Undoubtedly resistance by employers is a key reason. There is still a feeling that mediation is a ‘last resort’ before litigation. This is based on the experience of commercial mediation, where mediation is increasingly embedded in the post-proceedings stage of litigation. Some employers also feel that mediation is in some way a soft option, allowing an employee to string out grievances further.’ ‘There is also resistance by employees. Most neither understand that mediation is outside the HR process nor that it is available to them. For many employees the prospect of going into a workplace mediation, usually unrepresented and having to bare and confront highly emotional and personal matters, is frightening and stressful.’ On this account, the benefits of mediation have been undermined mainly by lack of information and apparent misconception as to its nature. Again, the importance of the mediation volunteers is put into play.
In England and Wales, the ADR has not yet gained enough popularity and people need to be informed of its nature and benefits. Civil law experts such as Hazel Genn claim that ‘despite the encouragement of pre-action protocols, civil procedure rules, and the Funding Code, the use of ADR has not increased in the way that was anticipated. The voluntary pilot mediation scheme at the Central London County Court (CLCC) only had a take-up rate of 4% before 1999. Between 1999 and 2003, when the effect of the Woolf reforms was beginning to be felt, there was an increase in the take-up of this scheme, but a decrease in settlement rates from 62% to 40%.’ She further hypothesises that ‘the Woolf reforms have led parties to mediate in order to avoid cost penalties, and in order to appear to cooperate with judicial direction, but they may be only “half-hearted” in their attempt to negotiate a settlement.’
Though some experts say that out of court dispute resolution in the UK is not yet as efficient and as well-known compared to other countries such as the US, Canada, and even developing countries as far as the Philippines, the Mediation Friends Project has done the first step in ushering a new era where petty differences are extinguished before it grows to a full blown conflict that takes much of our resources and putting strain to the already problem-ridden society.
Visit our website [http://www.rightviewconsultancy.com] for DIY litigation and Mediation advice.
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Whether your legal dispute involves a personal injury case, wrongful death case, insurance claim, family law, divorce, child custody, or child support case, you should strongly consider mediation to attempt to resolve your legal dispute through settlement. If you have an attorney representing you, mediation will probably be discussed during the pendency of your case. You should take a lead role in assisting your attorney during the process of selecting a qualified and experienced mediator in order to optimize your chance of successfully resolving your legal dispute.
Definition of Mediation
Mediation is an effective alternative dispute resolution method by which parties to a legal dispute agree to hire a neutral third party to serve as the mediator. The mediator’s role is to learn the facts of the case and arguments of all parties, to promote communication between the parties, and to facilitate the parties with respect to formulating a potential settlement of the legal dispute. The mediator remains neutral and should not provide legal advice to the parties.
With respect to almost every civil lawsuit filed in State Courts in Texas, Judges will order the attorneys and the parties to mediation prior to trial. However, the process is non-binding, meaning that you may choose to settle your case, or alternatively, you may choose not to settle your case and proceed with your case in Court. No one can force you to settle your case during mediation.
Whether your legal dispute involves a civil lawsuit, a dispute in which a lawsuit has yet to be filed, and whether or not you have an attorney or are representing yourself, mediation can be used to attempt to resolve the dispute with the opposing party.
Goals of Mediation
The purpose of mediation is to provide the parties a safe setting in which settlement negotiations can take place and in which a neutral third party mediator can assist the parties in exploring and facilitating potential settlement. The mediator should ensure that the parties mediate in good faith, meaning that each party agrees to engage and participate in the process.
An effective mediator should accomplish the following:
Preparation – properly prepare for the mediation by reviewing all information provided to the mediator by the parties concerning the case;
Neutrality – remain neutral at all times;
No legal advice – refrain from providing legal advice to the parties;
Understanding – ensure that all parties know and understand the process and rules of mediation;
Communication – facilitate communication and settlement negotiations between the parties; and
Settlement Agreement – draft a quality Mediated Settlement Agreement incorporating all terms of the settlement in accordance with the parties’ instructions.
Advantages of Mediation
The advantages of mediation are numerous and include the following:
Cost Savings – ends the need for continued expensive attorney’s fees, expert expenses, and costs of litigation;
Avoidance of Risk – lessens the risks for the parties in that the parties choose and formulate the terms of settlement, as opposed to leaving the decision with respect to the legal dispute to a Judge and jury;
Time Savings – can potentially resolve the legal dispute in a one day mediation session, as opposed to continued litigation which can take many months or even years.
In family law cases, divorce mediation is especially beneficial to parents with children who need to learn to negotiate and resolve disputes with each other for the best interest of the children.
Hiring a Quality Mediator
Hiring the correct mediator for your case optimizes the potential for settlement of your legal dispute. In choosing and hiring a quality mediator in your case, you should learn the background and experience of the potential mediator and consider the following:
Is the mediator a licensed attorney who has handled cases similar to your legal dispute?
What type of training does the mediator possess?
What type of reputation does the mediator have with respect to his peers?
Some quality mediators are not attorneys and not all mediations require the mediator to be an attorney to be successful in settling the case; however, it is often helpful to hire a mediator who is an attorney and has handled legal cases similar to the parties case. The benefit of hiring such an attorney as your mediator is that the attorney has knowledge and experience concerning the law and what may or may not happen with respect to legal rulings and decisions that may affect your case.
Dallas, Tx attorney and mediator Sheadyn R. Rogers represents clients for personal injury cases, wrongful death cases, family law, divorce, child custody, and serves as mediator in such cases for individual parties and attorneys. Sheadyn R. Rogers is Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization. Mr. Rogers has practiced law for many years on both sides of the docket for Plaintiffs and Defendants, and has successfully handled numerous jury trials including obtaining multi-million dollar jury verdicts (and settlements) for Plaintiffs and defense verdicts for Defendants.
Dallas, Tx mediator Sheadyn R. Rogers of Rogers Law Firm serves as mediator for individuals and attorneys throughout the Dallas Fort Worth, Tx metroplex, with comfortable offices for mediation in Plano, Tx, Allen, Tx, Lewisville, Tx, and Fort Worth, Tx. If you are in need of a quality, competent, thorough, and ethical mediator, call Sheadyn R. Rogers at (972) 447-8388 today. For more information about mediation, visit http://rogerslawtx.com/lawyer/Dallas_Plano/Mediation_pa9911.htm.
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If you have already separated from your spouse and have started consulting divorce lawyers, you have likely realized that you are about to embark on a long and expensive process.
Sometimes couples do not separate under the best terms and when emotions get involved it can lead to rash and expensive decisions. If you are in this situation, take a step back and consider the impact of your decisions on your health, children and wallet.
In Ontario two most publicized forms of Alternative Dispute Resolution have been Mediation and Arbitration.
Mediation is a voluntary private process where couples retain the services of an impartial third party “mediator” to help them reach a settlement. A mediated settlement is binding and is usually reflected in a Separation Agreement. Arbitration also involves an impartial third party however he or she is retained to conduct a Hearing and make a binding decision which is then reflected in a Written Decision.
In recent years the concept of collaborative law has emerged to encourage individuals to resolve issues without going to court. There are many ways that you can work through the divorce process with your spouse to avoid unnecessary stress. The cleanest, easiest and often most cost-effective way to deal with your divorce is to look for ways that you can agree on the issues with your spouse, starting with areas that you already agree on.
If you can’t agree, before going to court, your best course of action to save some money may be to consider another option; lawyer assisted coaching. This is where a divorce lawyer coaches you through the process while you self-represent. This could be the difference between you spending every dime you have on legal fees or you ending up with most of your assets intact.
Hiring a legal coach will enable you to establish a relationship of trust with someone who could step in and defend If you have already separated from your spouse and have started consulting divorce lawyers, you have likely realized that you are about to embark on a long and expensive process. Once you reach an agreement with your former spouse, you can your divorce forms online and then your legal coach can assist you with getting them finalized.No matter which approach you choose it pays to put your emotions on the shelf and start thinking about how you can make the smartest choices.
Author: Robert R. Berman B.C.L, LL.B, principal of Berman Barristers and founder of My Ontario Divorce. [http://www.bermanbarristers.com]
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Mediation is ideally suited to resolving contentious probate, contested Wills and inheritance disputes. Family members are frequently still grieving and Court proceedings will often cause rifts between parents and children and drive a wedge between siblings. This article considers the suitability of mediation in contentious probate claims and provides tips for improving the chance of settlement.
Contentious Probate and Mediation
Many different types of contentious probate disputes can arise. These can include disagreements concerning:
lack of testamentary capacity
lack of testamentary intention
lack of knowledge and approval
lack of due execution
fraud and forgery
construction or interpretation of a Will
a failure to make adequate financial provision
disputes during the administration of estates
In mediation the parties to a dispute sit down with a trained, neutral third person (the mediator). A settlement is reached only if all of the parties agree to it.
Mediation permits a Claimant to sit in the same room as the other parties (often friends and relatives of the deceased, and perhaps also charitable beneficiaries). Mediation allows parties to fully air their grievances whilst trying to preserve family relationships, and can hasten settlement.
The Association of Contentious Trust and Probate Specialists (ACTAPS) Code for the resolution of trust and probate disputes endorses the use of mediation at an early state. Whilst the Code is voluntary, it is held in high regard by Judges and the Courts.
Mediation has many advantages over Court hearings:
costs – mediation is usually less expensive than going to Court;
speed – mediations can be arranged within days, in contrast to litigation;
mutually satisfactory outcomes – parties are generally more satisfied with solutions that have been mutually agreed upon, as opposed to solutions that are imposed upon them;
confidentiality – the mediation is confidential and unlike the Court process, there is no public record;
comprehensive and customised agreements – mediated settlements are able to address both legal and extra-legal issues. Mediated agreements often cover procedural and psychological issues that are not necessarily susceptible to legal determination;
preservation of a continuing relationship – a mediated settlement can often preserve a working relationship in ways that are not possible in the win/lose scenario of Court litigation; and
control – mediation is an entirely voluntary process. The parties are in control of the outcome.
The mediation may be the first occasion that a party’s barrister may meet his or her client. This will allow the solicitor and/or barrister an opportunity to assess how the party, and any other attending witnesses, may perform at trial if the claim does not settle. It also gives the party an opportunity to consider how their solicitor/barrister performs.
Claimants can expect:
1. To be asked whether they would like a joint opening session, whereby all of the parties, and their lawyers, meet with the mediator;
2. The process to take time with low offers at first.
3. To have to compromise;
4. To hear unfamiliar legal terms during the mediation. A party’s lawyer may wish to discuss this with their client prior to the mediation;
5. A Defendant may want to settle the whole claim, including costs at the mediation; and
6. If the dispute doesn’t settle at the mediation, or shortly afterwards, the matter is likely to reach a trial.
Good preparation can increase the chances of a settlement being reached at the mediation. Such preparation includes:
deciding what disclosure will be required;
considering if additional evidence will be needed;
undertaking a detailed risk analysis of the matter;
deciding whether a barrister is needed and if so, whether he or she should attend the mediation;
discussing with the Claimant what he or she would like to say, if anything;
considering who should attend with the Claimant. For instance, if family members are involved in the decision-making process, will they also be attending?;
considering the agreement to mediate;
preparing a position statement. Mark the position paper ‘For the purposes of mediation only. Without Prejudice and Confidential.’ Remember that a position paper is not the same as a Court skeleton argument and considering whether a further document should be prepared for the mediator’s eyes only;
considering the contents of any mediation bundle;
preparing a draft settlement agreement/Consent Order/Tomlin Order; and
preparing details of the costs.
Stephen Wood is an ADR Group Accredited Civil & Commercial Mediator and an ADR Group Accredited Workplace Mediator as well as a Consultant Litigation Solicitor. Stephen has worked in dispute resolution for over 15 years and combines sound commercial acumen with creative thinking and strong analytical skills. A good listener and an empathetic mediator, Stephen is alert to the personal and emotional issues which often need to be overcome to facilitate a successful long-term resolution to a dispute. Visit http://www.stephenwoodmediation.co.uk and contact Stephen Wood Mediation to discuss whether mediation could be suitable for your dispute.
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When facing the difficult decision to divorce, many couples consider either litigation (each spouse uses their own attorney), or mediation (both spouses work with one neutral divorce mediator to reach an agreement) and usually believe these two options are exclusive of each other. While mediation tends to encourage cooperation and communication between spouses, an experienced mediator will never advise separating partners against seeking legal advice at any time during the divorce proceedings. In fact, family law attorneys are often involved at one step or another of the mediation process.
Unlike litigation, which puts both spouses on the defensive from the beginning, divorce mediation establishes a neutral and non-adversarial environment where spouses can reach a final marital settlement agreement (MSA) by resolving the many issues particular to each couple, such as division of assets, debts, bank accounts and retirement or pension plans, child custody, child support, and spousal support (aka alimony). The divorce mediator acts as a third-party negotiator, who guides separating spouses and helps them resolve any areas of conflict by encouraging cooperation and compromise. While divorce mediation can be a very effective way to handle divorce, it’s essential to remember that a divorce mediator is not acting as an attorney and can’t provide independent legal advice. Even if the mediation process goes very smoothly, the mediator will usually encourage couples to have separate attorneys review and explain the marital settlement agreement to them before they sign it.
Another time when consulting a lawyer may be useful is when spouses aren’t sure they’re getting the right results. They may seem to agree on an issue but still wonder if that decision will work long term for the specific situation. Additionally, an attorney is sometimes necessary when couples are left with a few issues they can’t seem to agree on during the divorce mediation process. While litigation of these issues in court will be a lot more expensive than mediation, sometimes a judge will need to step in and help couples reach an agreement.
Since trust is an essential part of the mediation process, it’s important to understand that mediation shouldn’t be encouraged for couples who have been involved in domestic violence or substance abuse, couples who have been affected by mental health issues, or if one spouse is trying to overpower the other. When a divorce mediator is asked to help those couples facing these sensitive issues that may require a lot of legal advice and possibly legal protection, he/she will advise them to seek individual attorney representation before attempting mediation.
To learn more about the mediation process, complete our request for a free online evaluation, and to receive a free 30-minute phone consultation, visit us at http://www.afairway.com, or call 619-702-9174.
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