What is it like to mediate a dispute when represented by counsel? When meditating a dispute, parties can represent themselves, or they can be represented by counsel. There are different mediation scenarios in which counsel may be involved, and counsels’ role differs in each, and may differ depending upon the mediator. Here are some answers to questions about mediating while represented by counsel.
Who is the Mediator?
Family Law Mediator: Your counsel can assist you with selecting a mediator, and may suggest a long time, experienced family law attorney mediator who has a mediation practice. Retired Judge: Parties’ counsel may also suggest engaging a retired Judge mediator to come into one of the counsel’s office to mediate with the parties.
In either scenario, the mediator will have experience and familiarity with the law and will use their mediation training to help the parties overcome impasses and generate creative solutions to problems.
What is the Process?
Even before the mediation itself, you and your attorney will prepare for the session. Your attorney will explain the mediation process, and the two of you will identify the issues to be discussed, and your attorney will help you to be comfortable and confident when discussing the issues, your concerns, and your interests during the mediation session.
Family Law Mediator: Both parties may agree to have counsel present in the mediation sessions, and you or your attorney will let the mediator know in advance. Even though your attorney is present during the mediation, it is important for you to have a voice, and therefore, while your attorney will support and empower you, you will speak directly with the mediator and the other party. The attorneys will typically lead any discussion about the law.
Retired Judge: When using a retired Judge as a mediator, counsel will usually have a joint pre-mediation call with the Judge, and each counsel will have the opportunity for a private call with the Judge. Basic factual issues, key disputes and specific positions are reviewed with the Judge mediator, which helps make certain that the mediation itself covers all the critical points.
The Judge mediator will be given copies of any documents filed with the Court as well as any settlement offers that have been exchanged prior to the mediation.
Your attorney will prepare for the mediation by putting together a summary of the issues together with a picture of the assets and debts at issue, with the related documents.
The mediation session begins with everyone together, and the Judge will give the parties some background information about the Judge and will talk about mediation and how the mediation will proceed. Everyone involved will sign the Agreement to Mediate.
Each party and his or her counsel will have a separate room, and the Judge mediator will go back and forth between rooms talking with the parties and counsel. This is your opportunity, with the assistance of counsel, to share your perspectives and information with the Judge and to share your options for resolution of the issues, which the Judge will then share with the other party. Your attorney’s role during the mediation is to assist you in asserting your interests, providing and explaining documentation to the Judge, and to provide legal advice. There may be also be times during the mediation session when counsel will meet with the Judge without the parties present. If agreement is reached, the counsel will work together to write the Agreement, which the parties will sign before leaving the session.
What are the Benefits to Having an Attorney?
When going through a mediation, representation by a skilled family law attorney has quite a few benefits. First, unlike the mediator, the attorney can provide legal advice. This is particularly important for risk assessment of a party’s position and how likely the party is to prevail otherwise, such as through litigation. Second, having an attorney at the mediation means that the advice is happening in real time, so if a question or concern comes up, the parties don’t need to interrupt the session to ask their attorney. Third, the attorneys are working on the settlement agreement throughout the session, which differs from mediations without counsel, where the mediator will require time to memorialize the agreement, and there is a back and forth between the parties to negotiate and agree that the writing reflects the actual agreement. Finally, the participation of the attorney brings the experience and creativity of counsel to help come up with solutions to the dispute, and to help address other intricate details of agreements that may be overlooked by the parties.
For decades, Reese Law has represented parties in family law matters in alternative dispute resolution like mediation. To learn more about Reese Law click here.
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