Driving on the St. Michaels Road the other day I came across a minor fender bender. To say the least, there was an “active” conversation going on between the two drivers. By the time I came back the other way, both drivers were calmly exchanging information. It reminded me that disputes happen every day. They might be with your roofer, your spouse about dividing marital property, or settling an insurance claim. All these disputes are fair game for mediation. Whether court-referred or private, mediation is a process where a trained, impartial mediator helps people communicate, understand each other, explore options for mutual gain, and reach an agreement that is satisfactory to both parties.
Traditionally in Talbot County mediation sessions have been held face to face, but with the COVID outbreak many sessions are now being held using Zoom, and with considerable success. Regardless of the format, the process might sound a bit daunting. It’s not, if you understand the basics. Here is the good news about mediation.
First, mediation is confidential. What is said in mediation cannot be used in court at a later date. The mediator may not be called to testify about any mediation communications, and will keep all conversations and information confidential. Why is this important? It allows the parties to freely, and creatively, suggest and discuss solutions that the court could never consider or even imagine. This does not mean you cannot discuss ideas and solutions outside of mediation. You can, for example, get input from advisors, or family, as you consider options.
Second, mediation is completely voluntary. Parties can leave the mediation session at any time. Participants cannot be forced to agree to anything. Settlements reached are only final when there is voluntary agreement by all parties. In court-referred mediation, if the parties do not reach agreement, they can still proceed with their case in court. No legal rights are lost by participating in mediation.
Third, mediation puts you in control. The mediator will not act as a decision-maker or judge. Their job is to remain impartial and facilitate the process. Mediators will not give legal advice or make decisions. Keep in mind if you go to court, the resulting court decision will be based on a very narrow question. For example, exactly how much money must be paid. However, in mediation the parties decide what solutions will work best for them. That might include a financial payment, but also other conditions like confidentiality or restrictions on further claims. In mediation you have the opportunity to add conditions and solutions that would be beyond what the courts can require. This control can lead to very creative agreements, as long as they are legal.
A successful mediation will result in a written summary of the settlement for the parties to use going forward. This understanding, for example, can be used to instruct divorce attorneys or become a court order in a court-referred mediation.
Mediation is hard work. The process can be emotional and difficult. While expressing your views you will, at the same time, need to understand the views of the other party. You are not likely to have all your “wants” met. The process features give and take, which always involves compromise.
Steve Forrer lives in Easton, is former Dean and Vice Chancellor of University of Maryland Global Campus, is currently a mediator for the Maryland District and Circuit Courts. Questions can be submitted here for Steve to answer in this column. He also accepts private mediations.