When should we not mediate?

Mediation at once recovers for the spouses an equal footing in their says. No one party has more power than the other party. The mediator does not advocate for either party but acts on behalf of both.

All that has been said makes mediation look very good. And it is, but, there’s some instances in which mediation will not be adequate. This is the case when the issuedemands a third-party determination, like with partitions. Even if the parties are willing to mediate, the best or safest outcome is to defer the matter to a court or panel judgment. The mediator will be able to assess this for you.

Also, mediation will not proceed when the law precludes mediation as in cases where there’s a public interest or serious crimes. See here. Further, when a party is afflicted by illness, violence or addictions (alcohol, drugs), the mediator shall evaluate the situation and make recommendations as to proceed or not with mediation, or the need to ascertain counseling, or the need to legal representation (if there’s not one already). This evaluation is called pre-mediation.

Needless to say, mediation will not begin until parties volunteer to mediate.

Generally speaking, mediation can be structured in three phases: Pre-mediation, Negotiation, and Settlement (complete or partial) or Impasse. But there is little formality in mediations and the process varies widely from case to case.

Pre-Mediation includes evaluating if the case is in fact subject to mediation. As said, the mediator must measure not just the willingness of the parties but also that there be an equal standing for each party in a mediation.

Negotiation consists of gathering the parties’ sides. This is done in joint or separate interviews, as the parties deem fit. This is where the mediation is at its best. Where the process is conducted on the basis of fairness, not just strict law.

The Settlement is pursued by submitting proposals to the parties. If the proposals are agreed to, the parties then enter into a Settlement Memorandum in Family or Divorce cases, which they may subsequently take to attorneys for signing and have it filed in the courts, ending the matter free of the stress of a contestant or litigated procedure and high costs. Business mediations may reach the Settlement Agreement which, provided legal counsel has been given as indicated, need no further formality.

Very importantly, the mediation may end in an Impasse or Suspension; that is, no resolution. This outcome does not harm any of the parties legal rights. It is a perfectly valid outcome which guarantees the liberality of the mediation process. For this matter, the mediator calls the impasse and the parties may either reconvene at a later time or suspend it for good. In the Impasse, the mediator may indicate the convenience of a court procedure.

At any event, whether there’s a Settlement or an Impasse, mediation has served a great purpose. The parties in a settlement succeed to end the matter in a short time and at significantly low costs; and in an impasse they have cleared the way to proceed with sure conscious to the courts.

While preserving confidentiality, all mediation procedures are legally binding. Its agreements bind the parties. The good-will character of its nature does not make its resolutions “optional”. On the contrary, courts pay much attention to the mediation commitments and like to honor them in an effort to promote alternatives to litigation.

Its not safe to estimate a timetable but you should consider no less than a month form beginning to end. For more on mediation procedures please click here.

Richard Bethencourt