While writing this article, people have asked…
You are a therapist. Why are you interested in mediation?
My answer: Mediation comes up while people are working through parenting agreements, preparing for divorce, navigating business relationships – or all three things, at once.
And, naturally, they have QUESTIONS.
A BIG question: What is Mediation? And the more specific questions that follow …
- Are there rules for mediation? Do rules differ in various counties? States? How about rules that vary from mediator to mediator?
- What types of mediation are there?
- What is the timeline for mediation? Is there a timeline? If so, how is that timeline determined?
- How is mediation organized?
- Do some mediators require all parties to have a lawyer? If so, why?
- What is the difference between mediation and arbitration?
- How does mediation differ when applied to family law (settling divorce terms, child custody, and support disputes outside of court), civil disputes (resolving workplace disagreements, landlord-tenant conflicts, and contract or business disputes)?
This article isn’t an answer to all of your questions – but helps you:
1.) Identify/outline questions you may have
and
2.) Connect with those who can answer those questions.
The following people share their history doing mediation and …
*three important things*
for those considering mediation
Beth A. Allen | Senior Judge/Reference Judge/Mediator/Arbitrator
Phone: 971-997-2483
Email: bethallenadr@gmail.com
Beth Allen ADR https://www.bethallenadr.com/
I am a retired judge, who does mediation part-time. Most of the cases I handle are family law. I sat on the family law bench for most of my judicial career. Before joining the bench I had my own law firm that focused on LGBTQ family legal issues.
Three things someone considering mediation should consider are:
1. Am I so convinced I am absolutely right and the other side is absolutely wrong? If so, save your dollars for a very expensive trial. But, if you’re willing to consider that there may be an outcome that, though not perfect, you can live with that is short of your best case scenario, then mediation can save you tens of thousands of dollars.
2. Am I willing to listen to what the mediator has to say? this may depend on your mediator. If it’s sometime with a fresh mediation certificate, they may have no clue what law applies or how your case may fare in front of a judge. If you have a family law case, you need someone who has lived in that realm long enough to be able to cogently explain to you the positives and negatives of your opinion of your case.
3. How does the mediator mediate? In some cases, everyone in the same room is workable. In others, that’s a recipe for disaster. This is especially true if the relationship you’re leaving has a power and control dynamic. Does the mediator push, but also respect when you need time to think without the mediator staring at you? Will the mediator give up just because the parties seem to be at an impasse? Does the mediator consider and offer unique: outside of the (legal) box solutions? Ask around. Shop around. Don’t choose cheap over skilled because you may spend the same amount or more and potentially get a lesser outcome.
Thomas Bittner | Attorney
Phone: 503-223-4131 ext 132
https://schulte-law.com/thomas-bittner
I’ve been mediating divorce (family law) disputes for twenty years. I have formal training. I’m a divorce attorney by trade, and mediation is a sub-set of mypractice. I’ve handled over 350 mediations. Some involve attorneys, some don’t. These days I mostly do them by Zoom, but I still do in-person mediation if people wish for that.
Three things that people should think about before coming to a mediation are:
1. Do I have all the information I need to resolve this dispute? If not, then you better go get it before mediation.
2. Am I willing to settle at the time of mediation, or am I just going through the hoops? If you are not emotionally ready to be done with the case, then you should not go to mediation.
3. Am I willing to make compromises to resolve this dispute, and have I given thought to what those compromises might look like? You need to be prepared to compromise at mediation. If you can’t compromise, then don’t bother with mediation.
Jean Maurer | Senior Judge/Mediator
Maurer Mediation – LinkedIn
Email: maurermediation@gmail.com
When I became a lawyer, there were not very many women who had entered the legal profession so I have seen a profound and welcome change in that regard. I was a trial lawyer for approximately 22 years prior to my appointment to the bench where I served as a state court trial judge for 20 years.
I was the first woman to be selected as the Presiding Judge in Multnomah County. When I retired, I became a full-time mediator. I have loved all of my careers, but I especially love being a mediator. I feel that I was born to do this work. I thoroughly enjoy assisting people achieve resolution of the difficult circumstances which have led them to litigation. I see mediation as an opportunity for people to fashion a resolution that is acceptable to them. It is always a matter of compromise by moving past whatever brought the parties to the brink of courtroom proceedings. If mediation is not successful, the parties always have the opportunity to move to a trial before a judge or a jury in an effort to obtain a favorable verdict.
Judge Maurer does not practice family law mediation. What kind of mediation does Judge Maurer practice?
My practice is similar to the cases over which I presided as a judge and includes, among others, wrongful death, personal injury, premises liability, medical negligence, legal malpractice, construction defect, product liability, employment discrimination, wrongful termination, business and consumer contract disputes, estate litigation, sexual assault cases, and securities litigation. I do not conduct mediations in cases in which the parties appear without an attorney nor do I conduct cases involving family law matters.
Here are the three things I would like to share about business mediations:
1. Come prepared with a goal and a plan. What are you seeking to accomplish? There are several ways to end a business relationship. For example, the partners may desire to sell the business to a third-party and distribute the proceeds among the partners. Alternatively, they may agree that one partner may buy out the other partner(s) or sell the partner’s interest to an unrelated party.
2. Have experts lined up to value the business and to identify any tax implications.
3. Recognize that mediation is a process that involves compromise. It can elicit many emotional responses. Do everything possible to tamp down those responses and come prepared with admissible evidence that will be offered in court on the claims you plan to bring. Use the mediation as an opportunity to learn about the position the opposing side will take at trial if the case fails to settle. Keep an open mind. Be prepared to adjust your expectations.
Note: In the event that you are bringing tort claims (in addition to breach of contract), for example, breach of fiduciary duties, fraud, etc claims, you need to master the following legal framework:
A. Liability: What proof do you have in support of your claims that the other members of your business entity are liable to you for wrongs that you perceive to have been committed?
B. Causation: What proof do you have that the other members of your business entity caused you harm as a result of their wrongful actions?
C. Damages: What proof do you have of the value of the harms that were caused by the wrongful conduct of those other members of your business?
Eve Miller | Senior Judge
Phone: 503-936-1236
Email: seniorjudgeevemiller@gmail.com
https://www.evemillermediation.com/
In the late 1980s, I joined a group of very experienced mediators to set up a small claims mediation program for the Multnomah County Circuit Court. Part of our work involved training mediators which allowed me to go through the training. I had additional mediation training at Lewis & Clark Law School. Early on, I realized how important mediation is for cases involving families in conflict.
I became a consumer of mediation while representing clients. When I became a full-time circuit judge in 1997, I used my mediation skills for judicial settlement conferences.
When I retired in 2017, I began mediating family law and civil cases. I have mediated hundreds of disputes since retirement.
Here are three suggestions to get the best outcome from your mediation:
1. First, ask around for recommendations for a mediator. If you have an attorney, spend some time talking about the mediator’s style.
I do evaluative mediation, which is different than facilitative mediation. Evaluative mediation allows the mediator to give an opinion on the quality of the evidence, the witnesses, including the parties, and the legal issues that are involved.
2. Second, spend sufficient time preparing for your mediation. If there are financial issues, make sure you have documentation, e.g. property appraisals, business evaluations, tax returns, payroll stubs, bank account and retirement information.
3. Third, be prepared to compromise. Remember, going to court is costly in time, money and the emotional toll. The outcome is not absolutely predictable. A trial damages the relationship between the parties.
Most importantly, it is tremendously beneficial for children to see their parents resolve their conflicts in a professional and more amicable way.
Have questions? Reach out.
Below are links to topics/things related to this article – (including journal excercises allowing you to explore mediation – internally, within self and can be discussed in session):
- Lissa Kaufman Article on Divorce
- Belonging Journal Worksheet
- Boundaries Journal Worksheet
- Polarized Parts Mediation Worksheet
