I. Initial Confidential Conversations
The process begins with a call or e-mail to the mediator from one or more possible parties or their counsel, after which the mediator will schedule a brief (15 minute), confidential telephone conversation with each party or counsel.
The purpose of each initial call is for the mediator to (a) briefly describe the mediation process used by the mediator, (b) confirm that the party understands that the mediator's purpose is only to facilitate a process and not to provide legal advice or decide how the dispute should be resolved, (c) hear a brief, confidential summary of the party's or counsel's position and interests to be addressed in a mediation, including any court orders or referrals for mediation that may pre-define the scope, and (d) ascertain whether the party or counsel considers the process would be helpful in addressing those positions and interests. There is no charge for the Initial Confidential Conversations.
II. Capacity Determinations Are
Beyond the Scope of Mediation
The role of a mediator is to facilitate communications and understanding among competent parties, not to make determinations of the capacity of a party to enter an agreement to mediate, participate in a mediation, or enter a settlement agreement on completion of the mediation. If capacity of a party emerges as a central issue during the Initial Confidential Conversations, the mediator will decline mediating the dispute until capacity has been legally determined, or the party is represented by counsel or a Guardian ad Litem (GAL).
III. Agreement to Mediate
If each party, counsel or GAL has agreed during the Initial Confidential Conversations that the mediation process is likely to be helpful in addressing the interests in dispute, the mediator will send to each party, counsel or GAL a draft Agreement to Mediate, for review and signature by each party, counsel, or GAL.
(If any one party or counsel does not agree to mediation following the Initial Confidential Conversation, or the mediator declines to mediate until capacity of a party has been legally determined, the mediator will send a confidential e-mail to each party or counsel simply stating that all proposed parties and counsel did not agree to the proposed mediation, and the mediator's file is therefore closed.)
When all Agreements to Mediate have been returned to the mediator along with each party's portion of the retainer, the mediation will be scheduled, and the mediator will send to each party and counsel a Pre-mediation Questionnaire, requesting each party and counsel to specify their goals, concerns, and specific issues they want to address, and return the Questionnaire to the mediator seven (7) days prior to the scheduled mediation.
IV. Defining the Scope of Mediation
The first collaborative, consensual step in the Mediation Process is to involve all necessary parties in defining the scope of the mediation, with the mediator's concurrence, in order to provide a structured framework for the mediation to begin. This step is particularly crucial in estate and probate matters, in which various parties and interests may be involved, and the parties may agree that some, but not all, of the issues are to be included within the scope of mediation. For example:
V. The Mediation
The mediation session usually begins in joint session with an introduction of the process by the mediator. Each party is then given an opportunity to express their positions and interests, in either the joint session or individual private meetings (called caucuses), as preferred by the parties. During this process, the mediator assists the parties in clarifying interests, discussing areas of disagreement, identifying options for possible solutions, and if appropriate, developing a Settlement Agreement.
Throughout the process, the mediator will focus on the parties’ perceptions, their interests, and concerns. Because the mediator’s emphasis is on the parties and not the law, attorneys (if present) can be helpful in discussing legal principles and rights that may be involved. A common understanding of what is likely to occur if the case is litigated can have a positive influence on the mediation.
There are a few potential outcomes of a mediation:
VI. In-Person Mediation
Until 2020, mediations typically occurred in-person, in a location with sufficient physical space for each party and the mediator to have a private room. Due to the expense and inconveniences of providing in-person mediation, Legacy Mediation will consider the possibility of in-person mediation under appropriate circumstances.
VII. Online Mediation
The onset of the COVID-19 pandemic rendered in-person mediations impractical for various reasons, and accelerated the adoption of online mediation across all areas of practice, including estate and probate mediation. Post-pandemic, an estimated 70% of persons still prefer online over in-person mediation, for several reasons.
The lawyer responsible for this site is Stephen A. Brunette.
It is not intended to provide legal advice.
If you have any questions about matters discussed on this site, contact a lawyer of your choice.
Brunette Law Office LLC & Legacy Mediation © 2024.
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