FREQUENTLY ASKED QUESTIONS

The information on this page is for information purposes only, and is not intended to be and should not be treated as legal advice.  Please consult your own attorney regarding any questions you may have.

1. What is mediation?

Mediation is a settlement conference with a trained neutral mediator facilitating communication between the parties in an effort for the parties to reach a resolution of their dispute.  For additional information about the mediation process, please refer to our Mediation Information page.

2. When can I use mediation?

You can mediate whenever you have a dispute that could interfere with a business or personal relationship.

3. How is the mediation process begun?

The first step in most controversies is to inform the other party that the dispute exists. Attorneys would refer to this as presenting a demand. In the demand, the aggrieved party tells the other party why s/he is responsible for the harm suffered. If initial negotiation between the parties fails to yield the desired results, the aggrieved party may request that the other parties participate in either arbitration or mediation.

4. How do I choose a mediator?

You could choose a mediator who is a specialist in the field of your dispute. Or you can choose a mediator who is a specialist in dispute resolution. You may wish to choose a mediator who is both an expert in the subject matter of the dispute and an expert dispute resolver.

If you are in the process of choosing a mediator, the staff at Lee Mediation Services would like the opportunity to visit with you about your particular case and explore options for finding a satisfactory resolution.

5. What if the other side chooses a mediator first?

Mediators do not decide cases; they simply help the opposing sides reach an agreement satisfactory to both parties. If the other side is comfortable with the style of a particular mediator, that person may be a good choice. Call the proposed mediator, or have your lawyer call for you, and inquire about what types of cases that mediator has done, how he/she conducts a mediation, and what references she can provide.

For your own comfort, we recommend that you call the references provided, to find out others' opinion of how well their mediation was conducted. If you are not satisfied with the reports you receive, then you should propse a mediator in whom you would have more confidence.

6. Do I have to hire a lawyer for mediation?

While you may choose to mediate without a lawyer being present, it is generally not a good idea. A lawyer representing you at the mediation can advise you as you consider different options. Any agreement you reach in the mediation may have legal consequences. We recommend that you consult with Lee Mediation Services before you go to mediation, and definitely before you sign any agreement that come out of the mediation process.

7. Can one of our lawyers also serve as the mediator?

This is possible legally, but it's actually a bad idea. A lawyer has an ethical obligation to represent his own client vigorously. Afterwards, even if matters seemed to be settled amicably, the other side would no doubt feel they had been at a disadvantage if the opposing lawyer had also served as mediator.

8. Who can I bring to a mediation?

In addition to your lawyer, you can bring anyone who will be useful to you in deciding whether the terms of a settlement are acceptable. If you are married, you will want to bring along your spouse. If you don’t have the final authority to settle for your company, you should bring someone who can.

If there is no one in attendance with the authority to actually accept a proposed settlement, the mediator may terminate the mediation meeting, because it cannot be effective.

9. How long does a mediation session usually last?

Lee Mediation Services offers a broad range of mediation options ranging from a brief two-hour mediation for smaller cases to multi-day sessions for cases involving complex issues or multi-party cases.

10. What is a typical mediation like?

Often, the opposing parties and their lawyers (if they are using lawyers) will meet with the mediator for an opening session. The mediator will explain the process to be used, and what will be expected from each side. Then the disputants will each have an opportunity to tell their side of the dispute in the joint session. The mediator may ask questions to be sure the issues are clearly understood.

After the general session, the group is often moved into two separate areas. The mediator will then talk to each side individually, in an attempt to learn more about what is motivating the dispute, what the underlying issues are, and where there might be areas open for compromise or movement away from established positions.

The mediator will propose suggestions to each side, to see what their response might be. The mediator will move back and forth between the groups, helping them invent new possibilities, trying out ideas, and narrowing the differences. A successful mediation ends in an agreement that resolves the underlying dispute to everyone's satisfaction.

11. What if we do not finish mediation in the time reserved?

Your mediator will make every effort to conclude the session in the time scheduled.  If that is not possible, additional session(s) may be scheduled at the convenience of the parties.  Alternatively, the mediator may conduct follow-up sessions by phone with counsel in an effort to conclude the mediation.

12. Will the mediator decide who wins?

No. Mediators do not decide cases. They have no power to impose their opinions about how the dispute should be resolved. They can offer different perspectives, help you to articulate your priorities, re-frame the dispute, and assist the disputants in negotiating a settlement. But they cannot force either party to accept the proposed settlement.

13. If I settle at mediation, is the agreement binding?

Typically, when the parties reach an agreement at the mediation session, preliminary settlement documents will be prepared by the parties and their attorneys at the mediation.  Final documents are typically prepared by counsel for the parties shortly after the mediation. Pursuant to the ADR Statute, a mediated settlement agreement is enforceable like any other contract.  Any written document resulting from the mediation should be reviewed and approved by each party’s attorney before execution.

14. What if my case does not settle at mediation?

If your case does not settle, you are free to proceed with litigation, arbitration or any other appropriate proceeding as agreed upon with your counsel.  Typically, your mediator will continue to follow up with the parties in an effort to bring the case to a resolution prior to trial.

15. Will the mediator give legal advice or act as my lawyer?

As a neutral intermediary between the parties, the mediator is not allowed to, and will not, act as an advocate for or provide legal advice to any party.  It is strongly recommended that you have your own legal counsel at the mediation.  The mediator reserves the right to stop the mediation if he or she feels an unrepresented party needs representation or does not have a sufficient understanding of the process.

16.  Do I have to attend the mediation in person?

Yes.  The Rules for Mediation and most Court Orders requiring mediation mandate that all parties necessary for the negotiation of the settlement be present at the mediation for the entire session.

17. May I attend the mediation by phone?

On rare occasions, the parties will agree that a party or representative of a party attend by phone.  The mediator cannot and will not release anyone from personal attendance at the mediation without the prior approval of all parties participating in the mediation.  The mediator is subject to the terms of the Court’s Order and does not have the authority to alter the Order or any agreement of the parties with respect to persons required to be present.

18. Will the mediator make a decision for the parties?

No.  The mediator will not make a decision such as would be made at trial or by an arbitrator.  The mediator will facilitate discussions in order to assist the parties in reaching their own resolution.

19. If the court sends me to mediation, will that make it different?

The mediation does not become a legal proceeding just because a court said you must mediate before it will set a date to hear your lawsuit. In some states, such as Florida and Texas, there are specific rules governing court-mandated mediation. Lee Mediation Services will be able to describe these specific rules, and how they might affect your own situation.

20. If the court mandates mediation before setting a trial date, do I have to agree to settle my case outside the courtroom?

No. At most, courts can require you to show up and try to settle your case. They cannot force you to settle on any terms – even terms that a mediator might think fair. You have a right to say no.

21. Does the mediator make recommendations to the courts?

No. While there are some exceptions to this general rule, mediators do not normally make any recommendations to a court or other adjudicative body.

22. Can the mediator testify at a trial or talk to the judge about my dispute?

The degree of confidentiality varies from state to state. It would be appropriate for you to find out before mediation whether the mediator has any authority or requirement to pass information on your case on to the court, or whether your mediator’s files can be subpoenaed.

23. What happens after the mediation?

The dispute is ended, and both parties can now devote their time and attention to getting their life back on track. It is perfectly normal for both sides in a mediation to feel they could have, or should have, gotten a better deal. It has been our experience at Lee Mediation Services that it would be very rare for a party to actually have gotten a better deal in the courtroom. Most of the time, mediation produces for both sides the best deal that was available at the time.