Everything You Always Wanted to Know About Mediation but Didn’t Know Who to Ask!

by Sheila M. Gutterman J.D., M.A.

What is Mediation?

Mediation is a structured process of negotiation which uses a neutral person, the mediator, to facilitate communication among the people who are involved in the conflict or dispute. The mediator establishes the ground rules for the process, assists the people involved in determining what’s important to each of them and what needs they have in resolving the problem. The mediator guides the people in identifying all of the issues, prioritizing their needs and desires, and determining what type of resolution will work best for them. The mediator does not tell people how to solve their disputes but often assists them in generating their own possible solutions, some of which may be quite creative.

Does a Mediator decide the case?

No. The mediator is responsible for assisting the parties, making suggestions, generating options to aid the parties in reaching a resolution agreeable to both parties.

What are the steps in the mediation process?

The parties must make a good faith commitment to settle the issues. If the mediation is court ordered, then the parties must be informed that they must comply or there will be sanctions. Both parties sign an agreement to mediate. They must be present during mediation sessions. The mediator states the ground rules, describes the process, answers questions, generates options and gives information, not advice.

Will the contents of the mediation be disclosed in the court if the mediation process fails?

No. The mediation process is private and confidential. In the agreement to mediate, the parties agree to not subpoena the mediator. Facts are disclosed to the other party, attorneys and professionals only with permission.

What is the purpose of mediation?

The purpose is to avoid the emotional and financial scars often caused by litigation and to provide an arena where the parties can evaluate their options and come to their own agreement.

Are lawyers present at the mediation sessions?

It depends on the nature of the dispute and the desires of the parties and the mediator. There is no set rule.

When should mediation start?

Mediation is most effective when there is early intervention. Ideally, it starts before a lawsuit has been filed or as soon as one is started. (Divorce proceedings are lawsuits).

Who is a qualified mediator?

At the present time, there are no set credentials or licensing requirements of mediators in Colorado. Practicing attorneys, mental health professionals and judges have lists of names and references for mediators. There is also a directory of mediation professionals published by the Colorado Council of Mediators and Mediation Organizations in cooperation with the Alternative Dispute Resolution Committee of the Colorado Bar Association(CBA). Call the CBA, phone 303-860-1115, for more information or visit the website www.coloradomediation.org.

What is the cost of mediation/arbitration?

Just as credentials vary, so do fees. Some mediators have a sliding scale fee.

Does mediation always work?

No. Mediation does not always result in a solution to the problem. However, statistics indicate that mediation has a high success rate and that agreements mediated have less chance of going to court at a later date. Mediated agreements also have a greater chance of compliance by the parties. There are some instances, such as cases where there has been physical or emotional abuse which cannot be set aside, where mediation might not be appropriate.