Mediation FAQ

Does a mediator eliminate the need for lawyers?

A party is not required to be represented by a lawyer at mediation sessions, but it is highly recommended that they each have an independent lawyer with whom they can consult. Mediation can, however, minimize or substantially reduce a lawyer’s time and involvement. When a lawyer/mediator is acting in the role of a neutral, whether as an arbitrator or a mediator, the mediator cannot represent either party or give them legal advice. To do so would destroy the mediator’s neutrality and is contrary to the ethical standards of conduct for mediators.

Lawyers are, of course, welcome at mediation sessions, and in many cases are often present. The ideal and most expeditious way appears to be for the parties to attend the sessions with the mediator alone and with no lawyers present. However, it is advisable for them to consult with their lawyers both before beginning mediation, and between sessions, to determine the parameters of their legal rights and responsibilities. At the conclusion of the mediation, the lawyer can then review any resulting written memorandum of understanding or agreement before it becomes legally binding.

How long does mediation take?

That depends upon the number of issues that need to be resolved, and, most important, how diligently the parties are willing to work toward resolution of the issues involved. Mediation is a process. Some simple disputes can be resolved in one session. Others may take more sessions.

How much does mediation cost?

Again, that depends upon all the factors. Typically, mediators will charge an hourly or per diem rate, commensurate with their experience in their given professions, such as law or psychology. The parties generally share in the cost although that, too, is an issue they can negotiate. Generally speaking, given the nature of the mediation process in comparison to the adversarial litigation process, mediation is, by far, less expensive and more affordable than litigation.

Can things I say in mediation be used against me in court later if the mediation does not work out?

No. By virtue of a Pennsylvania statute, and similar statutes in other states, all communications made in mediation, and, with some exceptions, documents used for the mediation process, are privileged. This means that the mediator cannot be called to testify in any subsequent legal proceeding, and that any documents or notes used in the process cannot be subject to subpoena or pre-trial discovery or be introduced into evidence.

Is mediation gender biased?

Use of mediation in divorce cases has been criticized by some as being biased against women, the contention being that women have less bargaining power than men during the mediation process. There is no merit to this according to a study published in Mediation Quarterly, a publication sponsored by the Academy of Family Mediators (now the Association for Conflict Resolution). The authors of the study analyzed a statistically significant sample of mediated and adversarial cases for differences in financial outcomes between the two formats. No differences were found between mediated and adversarial cases in (a) family income or liability outcomes for women, (b) likelihood of periodic alimony being received, or (c) amount of alimony received. Of interest, however, were the findings that women in mediated cases obtained (a) a significantly greater percentage of assets than women in adversarial cases, (b) periodic alimony for a significantly longer duration and, (c) significantly more child support. Also of interest was the finding that men who mediate were more likely than men using the adversarial process to obtain joint legal and physical custody. College education for children were more likely to be included in the settlement agreement when couples mediated.

If parties go to mediation and a settlement agreement is not reached, has the time and money been wasted?

Usually no. While, ideally, an agreement will be reached as to resolution of the issues involved, that does not always occur. However, the mediation process can still have positive results. The process frequently defines and narrows the issues for a subsequent trial, allowing the trial to proceed much more efficiently and in less time. Quite often, even though the mediation process does not produce an agreement at the conclusion of the process, it leads to settlement at a later date, but before trial. The mediation affords the parties an opportunity to gain a better understanding of each other’s needs and interests, and to assess the strengths and weaknesses of their cases. This can give the parties more reasonable expectations of the final outcome at trial.

How do the courts view mediation and other forms of alternative dispute resolution?

With a few exceptions, most courts look favorably upon mediation as a means of cutting down on the increasing workloads of the courts and case backlogs. Many courts have implemented rules of procedure to foster and encourage mediation as an initial attempt to resolve disputes between the litigants.

Does mediation have any role or place outside of actual disputes?

Definitely yes. Parties will frequently use a mediator to resolve issues before a dispute occurs. For example, two persons may be trying to put a business deal together but get stuck or hung up on certain points. A mediator can help them define their interests and help them search for options that will fulfill their needs, allowing them to move on to complete their transaction.

Another area where mediation can be very beneficial is the negotiation of pre-marital agreements. Prenuptial agreements can raise some very delicate issues such as sharing of assets with one another or transferring ownership of assets to each other. Providing for comfort, support and maintenance of each other during the marriage as well as after death of one of the partners, can be particularly delicate especially when one or both have children. Left to two lawyers taking an adversarial approach to negotiation, the couple can soon be negotiated out of their desired marriage. Mediation can help the parties discuss, in a safe, calm and rational fashion, their needs, interests and desires in order to arrive at a mutually acceptable agreement that will provide for each other as well as their respective families.

2080 Linglestown Road – Suite 102 Harrisburg, PA 17110; Phone: 717-526-4422; Fax: 717-766-3372; Email Joseph Skelly