Frequently Asked Questions
About Mediation

How do I get the other party to participate?

Some people don't know exactly how to ask the other party to try mediation. There are a variety of reasons - intense emotions, feelings of hostility, face-saving, the risk of being overheard, and uncertainty about how to describe mediation effectively. When you call MediationWorks^SM, you can request that we contact the other party. We will explain the process to them, describe the advantages of mediation, and answer any questions. Our no-pressure approach is designed to educate people about mediation so they recognize that there is an affordable, low-stress alternative to more formal proceedings.

How long does mediation usually take?

The number of hours spent in mediation varies depending upon the nature and complexity of the issues and the personalitites and relationship of the parties. In our experience, most business disputes complete mediation in 1-3 sessions, of 2-3 hours each. Divorce cases can involve 3-5 sessions of approximately 2 hours. The mediation process relies on the parties' communicating more directly with one another and is not slowed down by intermediaries or rules of evidence and procedure. This makes mediation an efficient process, cutting down on the time it takes to resolve the problem.

What does the mediator do in a mediation session?

The mediator remains "in the middle" of the parties' dispute throughout, never taking sides or giving advice. From that position he(she) listens carefully to each parties perspective, asks questions, and makes suggestions aimed at 1)getting all the relevant information out on the table 2)surfacing each party's true interests and all realistic alternatives for settlement. The mediator also helps parties manage emotional reactions that can be a significant obstacle to settlement.

The mediation session is conducted like a conversation between people trying to solve a problem. Though the mediator gives it structure and momentum, it does not involve prepared remarks, procedural requirements, or public proceedings. The mediator sets a positive, optimistic tone for negotiations, keeping the parties "on task" as they explore potential solutions.

Why is mediation so effective?

Mediation works because the mediators is skilled at defusing situations and moving the parties out of a raw power struggle into a successful negotiation. The parties look realistically at risks of winning and losing in court, at financial and emotional costs of continued conflict, and they explore the consequences of a broad range of creative solutions. In one, comprehensive process, they examine where they are and where they can go to satisfy their interests. Mediation does not mean "giving in" or "giving up." Mediation clients are no "nicer" than those who go to court. The difference is the process - in a positive environment, they find practical solutions that work for both parties.

Do we need attorneys in mediation?

Good question, but difficult to answer in a word. Ask yourself: "If we were able to sit down and resolve this problem ourselves, would 'the law' be an important factor in our decision?"

If the answer is "definitely yes," then you need legal advice before negotiating a settlement. There is no requirment that you have an attorney attend mediation sessions with you, and in fact, most attorney-advisors do not. Your access to legal advice and information can be an overview by your attorney prior to mediation, additional consultation as needed throughout hte mediation, and a review of the final mediated agreement. Attorneys familiar with mediation are very comfortable playing this advisory role, so that their clients can make informed choices iwhtout invoking the machinery of the courts.

If the answer is "definitely no," then there is no need to engage the services of an attorney before entering into mediation. For that area between the definite "yes" and the definite "no," you will have to base your decision on your personal needs and interests and the dynamics of the situation.

Will a mediated agreement be "legal"?

When people ask this question, they usually mean "What protection do I have that this agreement will stand up?" In divorce cases, the mediated agreement is incorporated into the final decree, making it enforceable by all methods available to the court. In other cases, the mediated agreement has the legal significance of any contract signed by two competent parties and all legal remedies for breach of contract within the jurisdiction are available.

In actual fact, mediated agreements usually have a high compliance rate. It is rare that such agreements are broken. Those who have studied this phenomenon conclude that since mediated agreements are voluntary, they are reached only if the parties' interests - psychological, substantive, and procedural - are substantially satisfied. In such a case, where a decision has not been imposed by an outsider, the parties have little motivation to sabotage their own plan.

What if we don't reach agreement - what are our options?

When both parties in a dispute agree to try to resolve their differences through mediation, a majority of cases reach settlement. If there is not areement on all issues, the parties to the dispute often make partrial agreements. This can reduce hostility and improve relations. Of course, some parties gain new insights through the mediation process and ultimately cease the conflict by "agreeing to disagree."

Sometimes, even a thorough examination of the parties' interests, issues, and options in mediation does not produce an agreement. It may produce other useful results such as clarification of issues, realistic apraisals of risk and options - but no final settlement agreement. In such a case, mediation in no way affects the parties' right or ability to pursue the matter through formal court proceedings. The parties may go to court with all of their legal rights in tact and with no worry that what they said or did in mediation will be used against them at trial. The Commonwealth of Virginia (Va. Code, Sec. 8.01-581.22) prohibits the statements and materials from mediation sessions from being revealed in court (except in cases alleging mediator malpractice and in situations where there is an allegation of child abuse, which mediators must report to appropriate authorities.)

What if we've already started legal proceedings - is it too late for mediation?

No. In most cases, the court will respond favorably to the parties' request to "slow down" or "postpone" the proceedings, to allow time for the mediation process. The Virginia courts promote the use of mediation, reserving the right to refer any contested civil case to mediation or other types of alternative dispute resolution, before the case goes to trial. (Va Code, Sec. 8.01-576.5)

Where does mediation take place?

There are three choices. We have several office locations in the Northern Virginia area, with our primary facility in Tysons Corner. In addition, we can conduct mediation sessions "on site," at either parties' place of business (this is common for employment, contract, or organizational disputes) or at another site conveniently located and agreed upon by the parties. Mediation requires a "conference room" type of setting.

What if we "fly off the handle" every time we talk about our issues?

This behavior, alone, does not "disqualify" you from mediation. In fact, much of the structure and process of mediation is aimed at defusing unproductive emotion, so that useful negotiation can occur.

It is typical for those involved in certain disputes (especially those involving long-term relationships) to become emotional about the issues being dicussed. This is normal, important human behavior. Mediators help the parties recognize and use their intense feelings productively within the framework of an orderly process. Sometimes mediators use "caucuses," or seperate sessions for talking with each party individually. This technique is particularly effective in reducing stress and keeping the discussions going in the "problem-solving' direction.

There are situations in which the parties cannot reduce their hostility to an appropriate level. This becomes apparent in the early stages of the mediation. In such cases, the mediator reserves the right to discontinue or terminate the process and the parties usually choose attorneys or other representatives to negotiate for them.

What if other people are involved in our dispute - should they be involved in the mediation?

The mediator considers three factors when deciding who will be present during a mediation session: 1) who are the responsible parties who have the authority to make decisions concerning the issues that will be discussed; 2) who are the people who have a stake in the outcome of any agreement that may be reached; and 3) how to limit the number of people involved while still meeting the objectives of 1) and 2)? In other words, we want those who are most involved and affected by the outcome of any agreement to be present, but in order to accomplish the tasks necessary in mediation, we can only deal with a workable number of participants.

When disputes involve multiple parties, we discuss these issues of group size and representation in advance, and reach agreement on the best approach before the first mediation session occurs.