How To Reach An Agreement In Mediation
|Friday, 07 September 2012 00:00|
By Leslie Lorenzano
If you are engaging in mediation, the ultimate goal is to come to an agreement to resolve your case and avoid the financial and emotional toll of litigation.
Mediation can itself be a long and taxing process, but a successful mediation can give parties a sense of satisfaction that litigation and a bare-bones order from the judge may not be able to provide.
Studies have shown that parties who resolve their case matter in mediation are often more satisfied with the result than if they pursue litigation.
A successful mediation allows the parties to come to agreements that best fit their specific case issues, tailoring the agreement to you and/or your children’s needs. Not all mediations are successful, but there are signs throughout the mediation that can indicate that your mediation is moving in the right direction and that your mediator is working to facilitate a successful mediation session.
All mediations are different, but this article is intended to provide you with an overview of the positive signs in mediation allowing for a successful final agreement.
Compromise With Satisfaction
Your mediator should be working to bring the parties together on an agreement, which allows for compromises, but also satisfies the priorities of both sides. In a successful mediation, your mediator will usually seem interested in your (and the opposing party’s) goals and will work to determine the motivations behind those priorities quickly.
Part of the mediator’s job is to actively listen to your goals and understand your perspectives. This will allow the mediator to identify points of agreement quickly, as well as establish what areas will require the most compromise.
Once the mediator has an idea of both parties’ goals and motivations, he or she will begin working to encourage an agreement.
Your mediator has a few different tactics that he or she may use to facilitate the agreement.
One important procedure a mediator uses is to play "devil's advocate" for your case arguments. The mediator will try to poke holes in your arguments, and also the opposing party’s arguments, in order to notify you of potential weaknesses if you pursue litigation. This is to provide both parties with a more realistic expectation of a possible outcome in court.
Most mediators will have experience as litigators of the issues they are mediating, and some may even be former judges; this experience will allow them to look at your arguments and evaluate the weak points of your and your ex’s cases.
The mediator will also likely know the judge to whom you will present your case if litigation is necessary and can give you an idea of what a possible response would be from that particular judge.
The mediator may also push you to consider the opposing party’s possible counter-arguments and responses, to determine how strong your argument actually is and whether it would withstand the pressure of cross-examination by the opposing counsel.
A truly neutral mediator will work to evaluate the strengths and weaknesses of both sides to encourage a compromise.
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The Mediator's Suggestion
Your mediator may also propose creative solutions to the issues at hand. Some mediators refer to this as a "mediator’s suggestion" wherein the mediator makes his or her own proposal for agreement to facilitate settlement.
A mediator's extensive experience allows him or her to have seen a wide array of options for settling different issues, and the mediator can pull from those experiences to come up with a unique solution.
This may happen throughout the mediation on several occasions, or may be reserved by the mediator as a "last ditch effort" to try to resolve the situation if the case appears to be at an impasse.
How involved the mediator is in coming up with specific possible solutions depends on the style of that particular mediator.
This tactic can help the mediator move the parties’ focus from "position-based" to "interest-based."
A party may be position-based when they are focusing on achieving one specific outcome in their case, and are not willing to move or consider other options to achieve that particular goal. For example, if a party wants shared parenting time and will only consider an alternating week parenting time schedule, he or she may be operating under a position-based focus if he or she will not consider other options to meet the stated goals.
The mediator can move parties to interest-based by focusing on the motivations behind the requested arrangement and helping the party to realize that their goals can be achieved in alternate ways. This transitions the focus to an interest-based perspective.
In the above example, the mediator may discuss why the party wants shared parenting time, and then point out that an alternative schedule, such as a 2-2-3 schedule, could grant both parties equal parenting time, but limit the amount of time each parent is away from the children during any given stretch, if that extended time away from the children is the opposing party’s main objection to shared parenting time.
A Mediator's Experience
As referenced above, the mediator will likely have experience litigating or judging the issues you have brought to his or her attention. He or she will most likely know the judge and know the law, and can give you feedback on rulings he or she has seen in similar issues in the past in the court you are pursuing your case.
The mediator can also give insight into how the judge has interpreted specific facets of the law under which you are arguing, in order to give you and your divorce attorney a better picture of any obstacles that may arise when making your argument to the court. This is usually done to help you determine on which issues you may compromise in order to reach an overall agreement on your case.
Remember that, while it may seem like the mediator is picking apart your case alone, he or she is likely presenting similar issues to the opposing side’s case as well.
An effective mediator can also spot when he or she needs to pull the attorneys out of the mediation and speak with them privately. This may be done to communicate to the attorneys what the impasse appears to be, or to speak candidly with the attorneys regarding the strengths and weaknesses of each side’s case to encourage counsel to approach their clients with a different perspective.
If the mediator believes one party is being unreasonable or unrealistic, the mediator may speak with the attorneys alone to try to alleviate this issue.
Reaching A Mediation Agreement
Ultimately, if your mediation is successful and a full agreement is reached, the mediator should type up a mediated agreement right away for both parties and their attorneys to sign in his or her office before anyone leaves the mediation.
This will prevent either party from pulling out of the agreement after it is reached and will allow the parties to work out any smaller details that were not addressed during the negotiations. This will ensure that the agreement can be filed with the court right away, so that the parties can begin to operate under the same as soon as possible.
A successful mediation session can allow the parties to reach an agreement tailored to both sides’ major goals and concerns, as well as allow for unique solutions to any case issues.
Your mediator should work hard to facilitate an agreement that fulfills the interests of both parties, and your attorney will help to ensure that you are aware of your rights and will assist you in evaluating settlement offers as they come from the other party.
The best strategy is to approach mediation with an open mind, and listen to your divorce attorney and the mediator so that you have all the information necessary to evaluate settlement offers. A successful mediation will provide you with an agreement that satisfies your goals and allow you to leave mediation with a resolution to your case.
Read our series of articles on mediation in divorce: