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Mediation is a form of Alternative Dispute resolution [ADR] where parties who are having a disagreement can come into a neutral environment [whether it be in person at an office or over the internet through an app like zoom] to discuss their disagreement with an impartial third party [the mediator]. Mediation is a confidential process and what is discussed during mediation is kept confidential by the mediator.
Mediation is an informal process. Mediation is not an adversarial process like arguing a case in front of a judge or jury and waiting for the fact finder to render a decision. The parties at the mediation define the issue that brought them to mediation. All decisions made during the mediation process involving how to resolve the disagreement are made by the parties.
A mediator may ask questions that helps the parties identify their interests and explore a range of options that may be helpful to resolving the disagreement. The mediator encourages the recognition of the other’s viewpoint. In the event a mediation does not lead to an agreement, alternatives to mediation may be discussed.
The parties decide what type of agreement to enter into. It can be as simple as a handshake and a smile. A partial agreement could resolve some issues but not all, and the parties are free to pursue their interests in another forum such as a court. A full agreement can ultimately resolve all concerns of the parties if that is what they wish to do.
For many types of disagreements that come to mediation, the end result may be a “Memorandum of understanding” . A memorandum of understanding is not a binding contract or agreement like signing a lease for an apartment. The memorandum of understanding is a framework of areas of agreement and action that the parties take back to their attorneys to draft a more thorough and binding agreement if that is what the parties would like to do.
Can mediation occur over zoom?
Yes, a mediation can occur over zoom and it is becoming more and more acceptable or normal [thanks to the pandemic] to engage in a mediation remotely over the internet. The mediator hosts the meeting over zoom and initiates joint and individual sessions by separating the parties into breakout rooms when it is appropriate to do so. Electronic documents and emails can accomplish most, if not all of the paperwork that would normally take place in an in person mediation setting.
What Style or Form of Mediation do you practice?
Although there are various forms of mediation. I practice “facilitative” mediation. This form of mediation requires that I make a good faith effort to maintain a neutrality during the mediation process and as a result, it is not my role to provide legal advice, counsel, analyze a party’s legal rights, or to cast judgments as to what is an appropriate resolution of the dispute.
It is my role as a unbiased neutral to provide an environment where I can assist the parties in reaching their own mutually beneficial agreement. The parties have control over how they view the problem, what options are generated to solve that problem, and if an agreement is to be reached, the parties control the form and contents of that agreement.
It is my goal to focus on the underlying interests of the parties and not on your “position”. By doing this, I hope to focus the parties attentions on common interests and mutual gains, allowing for an opportunity for the parties to create options that hopefully lead to a mutually agreeable solution to the issue that brought the parties to mediation.
Is Mediation appropriate for you?
What is Mediation ?
What are the advantages/ disadvantages of mediaion?
What are the advantages of mediation?
Mediation is often a much less costly and time consuming process as compared to going to court and suing the other party. Attorneys charge hourly rates and there are costs associated with travel time, depositions, and attending court hearings. Court dates are often spread out over months and in some cases can take quite a while to resolve. Even if your legal matter is going to trial, there is no guarantee that you will win. Any lawyer who promises you a victory probably should not have a license to practice law in Massachusetts.
I offer mediation at rates that are generally in the hundreds, not thousands of dollars. One mediation session over one day has the potential to resolve a disagreement in a relatively short period of time. The cost of one mediation session is likely comparable to one to three hours of an attorney’s hourly rate.
Mediation gives the parties a fair amount of control over the process in which a problem can be resolved. The parties get to choose which mediator they want. The parties can choose to have a mediation session in person or online, and the parties can also choose what time the mediation session will begin and end. Mediation is a voluntary process and you can choose to end a mediation session at any time. Mediation allows the parties to have a lot of flexibility in crafting the options that can lead to a solution that meets your unique needs and interests.
In many ways, mediation is a much more “user friendly” experience than court. In the court system, you generally have to appear in person at a certain time and “wait your turn”. Hours upon hours can easily be wasted staring at the courthouse walls waiting for your case to be called. The court process can cost you many hours of your time and also cost you a large sum of money if you are paying an attorney an hourly rate.
What are the disadvantages of mediation?
Not every mediation will result in a mutually agreeable solution. Although the court system may not be perfect, once a trial starts there is almost always a final judgement that will resolve that dispute.
Agreements reached in mediation are private and do not set precedent. If you are looking to establish a new rule of law or an interpretation of a legal issue as a result of your disagreement, mediation is probably not the right forum for you.
Mediation is a voluntary process. All parties to mediation must in good faith want to try and resolve the dispute or disagreement at issue. There is no ethical way to "force" someone into a mediation. If one party to a dispute does not want to participate in mediation, mediation is probably not the best option at this point in time. As a dispute continues to proceed and the costs of litigation increase, a party that was once not so agreeable to mediation, may over time decide that mediation is worth a shot.
Is Mediation a good option for everyone?
Not every disagreement is suitable for mediation. Mediation is a voluntary process so each party to the disagreement should want to participate in that process and it is not appropriate to try and force a party into mediation. Mediation also involves some communication between the parties during the session so there should be some willingness to engage with the other party during the mediation session. Through the use of individual rather than joint sessions during the mediation process, I can do my best to focus the parties’ energies toward generating options to resolve the disagreement if the joint sessions are becoming unproductive.
Mediation can provide a final outcome and certainty that a disagreement is resolved and admittedly, it may not be perfect. Litigation [or going to court to sue] does not provide the certainty of a mediated agreement. Whatever the fact finder decides in most court cases is final, whether you agreed to it or not.
Who would you consider a "good fit" for a mediation with your office?
Although my experience as an attorney for over a decade and a half has prepared me to engage in the field of mediation, my services are currently geared toward fairly simple disputes that do not involve the writing of complicated agreements that would be subject to scrutiny in a court of law. Although I am a trained Mediator who has completed forty-hours of mediation training in accordance with M.G.L. ch.233 § 23C with MWI in Boston, MA. I am not a "mediation expert" who can effectively mediate all types of disagreements. In some cases, I am more than willing to aid the parties in helping them craft a "Memorandum of Understanding” that serves as letter stating the areas of agreement/disagreement along with agreed to courses of action that the parties can take back to their attorneys to form a more legally binding document. If the parties wish to craft their own binding agreement during the mediation session in their own words, than in many cases I am comfortable with assisting the parties with that process. With that in mind I feel that I am capable of mediating the following type of disputes.
- Disputes between neighbors, friends, and colleagues who would prefer to resolve their disagreement without going into the court system.
- Small claims type matters involving goods, services, and alleged breach of contract.
- Customer Service related complaints
- Co-worker or Human Resources related disagreements.
- School related disagreements such as issues involving teachers, students, and administrators.
- Family disputes not involving divorce or separation.
- Disagreements involving Small Business Owners facing an issue regarding their business.
- Disagreements between Small Businesses where the parties hope to maintain a positive relationship in the future.
- Landlord and tenant disputes that do not involve the drafting of documents that will be scrutinized by a Housing Court in Massachusetts.
As I am no expert in the field of mediation, I would be the first person to tell you that I am not a good fit for you if you are seeking to have a mediator provide the following services
- If you are looking to have a mediator draft a separation or divorce agreement.
- If you are a multi-million dollar company seeking to mediate a complicated multi-state or international dispute that would result in a complicated contractual agreement.
- If you are looking to have a mediator draft an agreement regarding an eviction related matter that would be scrutinized by a housing court.
- Mediating a Medical Malpractice Claim.
- A Mediation involving a complicated subject matter such as software coding, patent infringement or similar matter that would likely involve the use of a “subject matter expert”.
How much does your office charge for Mediation Services?
I am currently offering mediation at the rate of $100.00 per hour with a minimum fee of $250.00 for a 2.5 hour session. A session will generally begin with an introduction to the process and then will consist of a combination of joint meetings, individual sessions, and a few 5-10 minute breaks.
If an agreement is reached a half hour into the mediation or before the time limit expires then the party or parties responsible for payment are responsible for the $250.00 cost. I generally schedule a mediation session as a 2.5 hour block of time. In the event multiple sessions are scheduled, payment for the first session must be paid in full before any second or subsequent session is finalized.
If the 2.5 hour session expires without the parties reaching an agreement than the parties can decide whether they would prefer to schedule another mediation session or decide whether they would prefer to seek an alternative such as filing a claim in court. If for example, five hours of time is scheduled for mediation and again the parties reach an agreement before the first session expires, the party or parties responsible for payment would pay for the first 2.5 hour session but not for the second 2.5 hour session.
The Scheduling of mediation during the day or night can be flexible but in general I do not feel for more than six to seven hours of mediation in one day is good for the mediator or the parties involved in mediation. I generally would suggest either one session per day or a maximum of two to three sessions spread out throughout the day to allow for breaks, meals, and an opportunity to recover from mediation or zoom burnout.