Mediation is probably the most common type of Alternative Dispute Resolution (ADR). Parties use mediation to attempt to resolve the issues in a family law dispute so that a trial can be avoided. When successful, mediation can significantly reduce legal costs and time spent in the legal process.
- Mediator fees typically run from $150 – $300 per hour.
- Typically more experienced mediators charge more.
- Parties typically split the costs of mediation.
Features of Mediation
- Mediation is typically conducted by a neutral third-party individual, called a mediator.
- In order to mediate in Minnesota, the mediator must be on the Rule 114 Qualified Neutral List. There are separate lists for civil cases and for family cases. Therefore, you’ll want to pick a mediator that’s qualified in family cases. Use the Minnesota Statewide ADR-Rule 114 Neutrals Roster to find a mediator qualified near you.
- The process is confidential, meaning that you can not be asked to testify about anything you said or did at mediation.
- The process is also non-binding. This means that the mediator cannot force you to agree to anything you don’t want.
- The process can also be ended at any time by anyone involved.
Role of Mediation
The mediator’s job depends on what is asked of him/her. Mediation can be facilitative, evaluative, or a combination of both.
- In facilitative mediation, the mediator attempts to help the parties resolve the dispute.
- In evaluative mediation, the mediator will give his/her opinion regarding how the legal issue may likely be resolved if it went to trial.
The Mediation Process
1. Prior to the mediation, the mediator typically will send out copies of a mediation agreement and request an initial retainer fee. The mediator may also request any relevant court or other documentation the parties want the mediator to be aware of or review.
2. The parties typically meet with the mediator at his/her office or some other neutral location. During the introductory period, the mediator will usually explain the process, the ground rules, and the expectations for the mediation.
3. After this first phase, the mediator will typically let each party tell his/her side of the story. This is open-ended and the parties are encouraged to contribute what each believes is important and helpful information.
4. After each party has had his/her time, in an evaluative mediation, the mediator may give some thoughts on how s/he believes the issues may be resolved. (Remember that these are just advisory opinions, they are not binding and will not be shared with the court.)
5. In the alternative, the mediator may first go with the facilitative model and then evaluate second. This is based on the preferences of the mediator and sometimes on the request of the parties.
* In any facilitative mediation, the parties will be encouraged to talk to each other and work out the issues. A skilled mediator will listen carefully and interject when s/he thinks doing so will help move the process along.
6. During this time, the parties may also caucus. This means that the parties will meet alone with the mediator, or alone with the mediator and that party’s attorney. These caucuses can be interspersed in the mediation process, depending on what’s needed.
Outcomes of Mediation
After the mediation session, which can take 3-4 hours, is completed the parties will have four different options:
1. Agree on some points, but not all. This means that further negotiations, alternative dispute resolution (ADR), or litigation will be necessary to resolve the remaining issues.
2. Agree on all points. This agreement can be drawn up and eventually submitted to the court. Such an agreement would end the court matter.
3. Agree on nothing. This means that further negotiations, alternative dispute resolution (ADR), or litigation (going to trial) will be necessary to resolve the issues.
4. Agree to schedule another mediation period. The hope in this situation is that further mediation will lead to more progress.