Frequently Asked Questions
Do I need an attorney for my divorce or civil suit?
Having an attorney represent you in court or for a legal dispute in general is a matter of preference. Having an attorney is not necessary in mediation, as mediation is merely an opportunity to communicate with the other party in an environment that is positive and cooperative in nature, so that all parties can practice self determination, feel heard, and negotiate in good faith. Because the process is voluntary, the parties will not be legally bound by any offers or discussions, unless they wish to be; and, most, if not all, communications made during mediation will be held confidential. Anyone who is represented by an attorney must make a decision as to whether or not they wish to have their attorney attend mediation with them.
If I don't have an attorney represent me, how does the dispute get resolved or moved forward?
For any agreements reached in mediation, the mediator will provide you with the drafted legally binding agreement, and the mediation report to submit to the judge; in this case, the judge will then move things forward, and only address the remaining issues. If the case is fully settled in mediation, the parties will be able to submit the settlement documents, provided by the mediator, to the court, and will usually be set for a hearing to confirm all details, or, in some cases, the case will be dismissed without a hearing. Most mediation agreements that are drafted with full resolution of case issues, will have verbiage that states the consequences of a breach of terms; so, even after dismissal, the court will hold power/control over the agreement until all terms are satisfied. In a civil suit, the consequence for a party responsible to pay a sum or perform an act that is in breach of the terms outlined, is usually a default judgment against them (which is pretty much the same as the plaintiff "winning" the case if it went all the way to trial). Most civil suits that are resolved in mediation are dismissed without a judgment on record, which is the best outcome for a defendant; but, this is only true and final if/when all agreement terms are satisfied.
Can our mediator make a decision for us?
No, your mediator cannot. There are models of conflict resolution that encompass this, one example being Arbitration or Mediation/Arbitration; but, in a basic mediation this is not permitted. A mediator must remain neutral, and unbiased as to the outcome of the mediation. The mediator's only goal should be to help the parties come to their own agreements. This does not bar a mediator from discussing possible outcomes of the case, pros and cons of certain offers, or come up with possible solutions based on the information provided; but, even in these circumstances, the mediator is only giving an educated opinion, not a decision. The mediator has no power to decide the outcome of the case, or terms of an agreement. In the arbitration models we discussed earlier, a mediator/arbitrator will make the final decision; but, even in those cases, it may only be if the parties cannot reach an agreement themselves. In all cases where a mediator/arbitrator makes a final decision, the parties must both agree to be bound by the decision beforehand. AEP will be offering arbitration soon, as some of our mediators and attorneys are also arbitrators.
Do I have to see the other party and talk to them directly?
No. If the parties wish to avoid direct contact with each other, this is achievable, just be sure to discuss it with your mediator prior to mediation. Once the mediator begins the Zoom meeting, he/she can have several "breakout" rooms for parties, and may then navigate the conflict with the parties one-on-one. However, this model is not the most effective way to hold a mediation, and may cause the mediation to go into overtime or need to be rescheduled for a second session or more, as it takes more time to negotiate terms when messages are relayed as opposed to communicating through real-time proposals, acceptances and rejections. This does not mean agreements cannot be reached with this model, it may just take a little more time to get there.
Can I talk to the mediator privately, while in mediation?
Yes. This is called a caucus. There may be times where the parties request this, and times when the mediator requests it. This is a very useful aspect of mediation, as there are times a mediator will want to fact check or go over worst case scenarios with a party, but doing so may appear as bias or even make the other party feel they have leverage they hadn't thought of on their own; so, having this conversation separately, allows the mediator to address these concerns privately, so what he/she says will not hurt or help either party if the case does not reach agreement. A mediator must ensure that their input does not hurt or help one party over the other, so sometimes private conversations are necessary. Having a caucus in mediation also adds an additional layer of confidentiality to the communications being made, as the mediator can only share with the other party what the party in caucus allows with direct permission.
What are the main benefits of mediation?
Cost. Mediation is far less expensive than taking a case all the way to trial; and/or having an attorney represent you in court.
Time. Even if it took four mediation sessions for your issue to be resolved, you would only be 8 hours invested in your conflict, as opposed to conflicts that take months and sometimes up to years to conclude.
Convenience. Mediation, especially when held remotely, is usually a very straight forward process. Because most courts in the US are so highly congested with cases, it is not uncommon to come across several unexpected delays. Not to mention the normal red tape one comes across when dealing with our overwhelmed judicial system and their rules and procedures. With modern day issues, being in a crowded courtroom or clerk's line is very undesirable.
Power. By leaving your case in the hands of a judge or jury, you give up power. There are times when this is absolutely necessary, but if you can avoid it, you should. Regardless to how prepared you or your attorney are to argue a case, you are taking a chance. No one can guarantee a win in court; and, sometimes when you "win" it isn't exactly what you wanted or expected. In mediation, the parties to the conflict have the ultimate power to decide the conclusion of their case. If the parties can come to an agreement, they have the power to put the agreement into writing and either dismiss the case, or have the court enforce it; and, a lot of times you can do both. A well-written mediation agreement keeps the power with the parties if all terms are met, and the consequences with the judge to enforce upon any breach.
There are many other benefits in choosing mediation over the adversarial process of courts; but, these are the main aspects.
Can I get my document notarized by a notary in a different state?
Yes. A notary can notarize a document to be submitted anywhere in the world, as long as the notary themselves is in the state they are licensed in when completing the notarization. This is now very standard, as remote notarization has become very popular and authorized by many states (by this we mean some states have allowed their notaries to attain remote/online certification; and some have not; but the notaries approved by their state, may remotely notarize documents in all states, as long as they are physically in their authorizing state).