FREQUENTLY ASKED QUESTIONS

Who will be attending the mediation session?
Along with the mediator, each of the parties to the dispute will attend the mediation session.  If one of the parties is a corporation or other organization, one or more authorized representatives of the organization will attend.  If the parties have retained counsel, these attorneys will also attend.  In certain types of disputes, a representative from an insurance carrier may attend the mediation instead of their insured, but only if they are authorized to settle the dispute on behalf of their insured.

How long does a mediation session typically take?
The length of time it takes to mediate a dispute will depend upon several factors, including the number of parties, the complexity of the dispute, the facts, or the underlying transactions, and the complexity of the legal, technical, or financial issues.  For example, a slip and fall case involving two parties where the facts are largely undisputed will likely take 2 to 4 hours to mediate; on the other hand, a complex commercial real estate development dispute involving multiple parties – developers, lenders, contractors, subcontractors, sureties, etc. – could take many hours, or days, to mediate. 

How much does it cost? How are mediation fees calculated?
We offer flexible pricing options.  The fees charged in any particular mediation will depend upon the nature and complexity of the dispute.  Our standard hourly rates range from $75 to $300 per hour per party in a two-party dispute with a three-hour minimum booking.  Our hourly rate increases on a sliding scale if the mediation involves additional parties.  We can provide flat fee quotes upon request (e.g., full day or multi-day rates).

Who pays for the mediation services?
The parties to a dispute are responsible for the payment of our invoices.  If not paid in advance, payment is due at the time services are rendered.

How do we make sure any settlement we reach will be enforced?
 If a resolution is reached in mediation, it will be documented in a written settlement agreement.  The settlement agreement is a formal legal contract that will govern the parties’ conduct after it is signed. Depending on the particular facts and circumstances of your case, you may be allowed to seek court intervention if one party does not abide by the terms of the written settlement agreement. However, the vast majority of settlement agreements are honored by the parties. 

I have heard that only retired judges are allowed to mediate disputes – is this true?
Absolutely not true!  While retired judges can certainly mediate cases, other qualified individuals can and do serve as mediators.  Our mediators include a number of qualified individuals with diverse experiences and backgrounds.  We believe that this diversity allows our mediators to deliver unique perspectives, and thus real value, to the parties in a dispute.   Legal expertise on the part of the mediator can be helpful, but we believe that it is more important for the mediator to have a broad world-view, as well as demonstrated expertise in facilitating resolutions that will work best for the parties.

Why do we need a mediator – my lawyer is really good and knows my case better than anyone else?
Lawyers are retained to represent clients, while mediators are retained to settle disputes.  Mediators are neutral and have no interest in the outcome of your dispute.  Thus, the mediator can help you (and the opposing party) to analyze your case objectively and fairly.  On the other hand, your lawyer seeks to zealously represent your interests, even if that may sometimes result in prolonging the dispute.  Most lawyers welcome the involvement of a mediator because they know that it often results in a fair and efficient resolution for their clients.  In addition, many courts now require mediation as a precondition before allowing a case to go to trial. 

I don’t think a male will really understand my case – is it possible to have a female mediator assigned to our dispute?
Yes!  We have placed a wealth of information about our mediators on our website, and you can select the mediator for your dispute with whom you feel most comfortable assuming all parties agree to your selection. 

I don’t follow legal jargon - will the mediator explain the process to me in plain language?
Yes, our mediators typically have backgrounds in business or social services, or have received specialized training to communicate clearly with laypeople.  As much as possible, we avoid “legalese” in our work and we seek to translate or clarify for the parties any legal jargon we may encounter during a mediation session.  Our primary goal is to assure that the parties are personally empowered to resolve their dispute, and that is impossible if the parties do not understand the words that are being used to describe their dispute.   

Do I have to be represented by an attorney in order to mediate my dispute?
 No, you can mediate a dispute without being represented by an attorney.

English is my second language – will the mediator make sure that I understand the matters that are being discussed at the mediation session?
 Yes. During the intake session (the preparation conversation that takes place during the scheduling of the mediation session),  the mediator asks questions that will not only clarify  the basis of the matter that is being disputed, but the support that each of the parties will  need in order to fully engage in  the mediation process. At the heart of mediation is the power that each of the parties possesses to shed light on what it will take to put the problem to rest. If translation services are needed, the mediator will work with the parties’ attorneys or with a provider agency to secure a certified translator. We have also selected our panel of mediators with diversity in mind – to include talented professionals who are multi-lingual – fluent in the primary languages spoken throughout the US. 

My dispute involves highly technical issues – shouldn’t the mediator be an expert in this area so he/she can follow the discussion?
 No. The intake conversation is a tremendous tool that allows the mediator and the clients to determine the specific resources necessary to position the parties to achieve the right result – a solution FOR the parties that is created BY the parties. The essence of conflict resolution is the search for an understanding of the positions and interests of the parties in the dispute – that which each side believes is necessary to end the conflict and why. Our mediators are trained to ask clarifying questions and to utilize the best resources when faced with a barrier that is caused by the mediator’s limited knowledge of a subject. Because our firm prides itself in our diverse pool of talent – having  mediators available who hail from various walks of life and industries, if subject matter expertise becomes necessary, there is a better than average chance that the experience exists within our firm. Additionally, a mediator’s subject matter expertise about highly technical area of dispute can be a limiting factor when it comes to helping parties to create a solution that fits them as individuals. There is a heightened risk of a one-size-fits-all approach to resolving a dispute when the third party mediator is a specialist in the subject area at the center of the dispute. 

Can I bring witnesses (character references) to the mediation session to support my case?
To ensure that the mediation process is focused, balanced and productive, the mediation session is reserved for the participation of the people – the parties – who are directly involved in a conflict situation, those who have the authority to negotiate the resolution of the problem and settle it. If the presence of a person who does not “own” the dispute is desired by a party, the other parties must agree to allow his/her presence.  The purpose of the outside party’s presence must be clear not only to the parties, but to the mediator as well. At all times during the mediation session, the mediator can disallow the outside party’s participation if his/her presence proves to be disruptive – regardless of the parties’ desire to allow it. 

Who knows about the negotiations that take place during mediation?
The people who know about the negotiations, whether a matter is settled or not, are the parties who “own” or who are directly involved in the dispute, the attorneys who represent the disputing parties and the mediator.  Confidentiality is one of the most significant advantages of mediation. Discussions that take place in joint and private sessions, the documents created during the mediation session, and the outcome of the mediation are all confidential. 

Will there be a court reporter/stenographer in the mediation, or will there be any other recording of the mediation session?
No. The mediator may take notes that will be used to keep track of the settlement options, and the parties or their attorneys may take notes to aid the clarification of issues being addressed. No other recording sources , human or electronic, are utilized in the mediation session. 

What happens if we don’t settle during the mediation session?
If the mediation session does not produce a resolution to the dispute, there are two options. 1) The mediator can, with the support of both parties, extend (continue) the mediation so that it can be reconvened at a later date. 2) he mediator can declare an impasse, which will terminate the mediation proceeding without any agreement and, unfortunately, require the parties to spend more time, energy and expense on the dispute. 

What if the other party does not appear for the mediation session?
All parties in the dispute must be present for the mediation session to take place. The reason for the absence of any of the parties will influence the parties and their legal counsels’ decision to reschedule the mediation session or to reconsider mediation as an option to settle the conflict. 

Can I select the person who will mediate my case?
Yes. While the option to choose the mediator is not a standard offering in the field of mediation, our firm is committed to providing a diverse panel of mediators in order to increase the likelihood that people who are involved in a dispute will increase the opportunity to settle their problem if we embed freedom of selection in the service offer. The mediation process requires that all parties involved in the dispute agree on the person or persons who will mediate their case.  

How will the court know that we have settled our dispute through mediation?
If the parties are represented by counsel, it is the responsibility of the attorneys to notify the court(s) of any settlement. If the parties are not represented by counsel, the mediator can assist the parties in fulfilling their responsibility to notify the court of the case status. There is no required disclosure of the terms of the settlement. 

Will the mediator act as my attorney or help me with legal questions?
No. The role of the mediator is to be the neutral third party. The mediator is responsible for the integrity of the mediation process, which, at its foundation is the power of self-determination for all parties involved in the dispute. This means that the mediator makes sure that the parties understand the process, and are able to represent their interests and positions in an environment that promotes clarity, customized problem-solving and ownership of the solutions by the parties. The mediator must also be able to support the fairness and enforceability of the terms of any settlement that is reached as a result of the mediation process. 

Will the mediator make a decision about who should win my dispute?
No. The mediator does not act as an attorney, arbitrator, claims adjuster or judge and does not perform what is known as a “neutral case evaluation”. The role of the mediator, as described in the answer to the previous question, is to uphold the integrity of the mediation process, which, at its foundation is the power of self-determination for all parties involved in the dispute. The mediator can only be effective if s/he remains neutral and Impartial throughout the process. 

Can my lawyer attend the mediation session without me? Why do I have to attend if I am represented by a lawyer?
 Yes, your attorney can participate in the mediation without your presence. However, you will have to give your attorney advance authority to negotiate in good faith on your behalf at the mediation. Also, the mediation process is typically more successful when all disputants are present at the mediation session. This allows the parties to communicate directly and effectively with each other, so that the negotiations address all of the parties’ respective interests and that any resolution is completely agreed and understood. 

Will I be allowed to speak at the mediation session? Will I be allowed to ask questions of the other party during the mediation?
 Yes. The disputing parties and their counsel are allowed to speak and ask questions throughout the mediation. The mediator will explain the guidelines and components of the session – what the parties can expect – during the mediation session orientation/introduction. 

I can’t be in the same room as the other party – do I have to sit next to this person?
No. The setup of the mediation room and the seating arrangement will be designed to produce calm and comfort for all parties. The most common setup calls for the disputing parties to sit across from each other at a large conference table. As one of the parties you can expect to be seated next to your attorney.  Either you or your attorney will be positioned near the mediator who will typically take the seat at the head of the table. Sometimes, this seating arrangement can interfere with the discussions or cause unnecessary distractions. If the mediator determines that the room setup is not beneficial to the discussions, he/she may take steps to rearrange the parties in the available physical space, or to separate the parties into different rooms. If the mediator separates the parties, he/she will then shuttle back and forth between them in an effort to keep open the lines of communication notwithstanding the parties’ physical separation. 

The other party has threatened me with violence – what will be done to protect me from physical harm during the mediation session?
If any one of the disputing parties has threatened another party with physical violence, or has behaved violently, mediation might not be the best option available to settle the dispute. It will be important to disclose the history of the parties’ relationship and any attempts to resolve the dispute during the convening stage of the mediation process. The mediator will attempt to determine whether the prior history might interfere with any of the parties’ right of self-determination (the power of each party to take control of the dispute and of any potential resolution). If the mediator makes such a determination, he/she may refer the parties to other alternatives. If the mediator determines that the parties can freely exercise their right of self-determination at mediation, he/she will allow the mediation to proceed with appropriate measures to ensure the comfort and safety of all participants.

If I don’t like the outcome of the mediation, can I appeal it?
The outcome, also called the “resolution” or “settlement,” can be reconsidered with the consent of all parties involved in the mediation that produced the outcome. The parties would have to agree that the party who raises the concern about the agreement has a valid reason to do so, and that another mediation session or other conflict resolution option might generate a solution that better satisfies each of their interests.