Q: What role does the mediator play?

The mediator acts as a neutral party in the room to help with the communication between the two parties. The mediator may ask questions to clarify each person's perspective and to help develop a greater sense of understanding. The mediator may also paraphrase, summarize or help parties avoid getting stuck in non-productive types of conversations. 

In the transformative model used the mediator does not act as a judge and does not express any opinions on what is right or wrong, good or bad or how the issue should be settled. The mediator cannot provide any legal advice, financial advice or personal advice to any of the participants. 

The mediator may meet briefly and privately in a caucus or private meeting with either or both of the parties and their representatives. When this caucus occurs everything said to the mediator is considered confidential and will not be disclosed to the other party without the speaker's consent. 

Q: If I have to hire a mediator, how will this save me any money?

Hiring a mediator does add cost to any dispute, but it is typically  far less than the full cost of having to start a lawsuit or end up in repetitive types of pre-trial meetings and discussions. Since the mediator's time is blocked, it is easy to budget for and agree on the time in the mediation. Not all mediators bill the same rates and it is important to check out different mediators in your area to find the mediation service that is best matched to your requirements with regards to time, scheduling and costs. 

Typically both parties pay the same fee to the mediator, but in some cases one party may pay the full fee if agreed to by both parties. In these situations it is important to understand that the mediator still is neutral and has no vested interest in the settlement of the agreement. Mediators cannot change their fees after the mediation has started, and they cannot bill on contingency options. In addition most mediators require all costs of the mediation be paid in full in advance of the mediation. Additional time can be added on to the mediation block provided both parties agree and payment can be made at the time of the meeting. 

Q: If mediation is confidential, can I talk about anything said in mediation outside of the meeting? What about the mediator?

In most mediated sessions the parties agree not to discuss issues talked about in the mediation outside of the meeting. The mediator is required by ethical standards to remain silent about things said in mediation, so the mediator is bound by confidentiality. There are some exceptions to that confidentiality and they include statements of child or elder abuse, criminal activity or personal threats to others in the room. These statements will be reported to the proper authority by the mediator. 

Information that the parties discuss in the mediation that can be discovered or was known prior to the mediation is not confidential just because it was discussed in the mediation. For example, employee time sheets or files, financial records or even information about children can and will be used in further court or legal action if relevant, even though it was discussed in the mediation. 

In the event of a breach of confidentiality by any party in the mediation, there is the option to proceed with legal action. The mediator is not involved in this action and cannot testify in court as to the mediation, information shared in caucus or the terms of settlement. 

Q:What does court ordered and voluntary mediation mean?

Court ordered mediation, court annexed mediation or mandatory mediation all mean that a judge or other authority ordered or required that mediation occur. Voluntary mediation refers to situations where the parties agree to mediation without being ordered by the court or another authority. 

Q: What is mediation and how is it different than court proceedings?

In mediation the parties are able to talk directly to each other, including asking questions and providing information. There are no rules of evidence and parties are not compelled to follow the more formal structure of a court hearing or trial. Each party may take breaks, talk to their representative privately, or even call and and speak to other people during breaks in the mediation. 

In the model used by Positive Communication Systems, the parties in the mediation may take as many breaks as they would like and may also bring in subject matter experts, consultants and of course legal representatives as they deem important to the conversation. 

The mediator does not act like a judge and does not develop a decision or ruling on any aspect of the dispute at any time before, during or after the mediation. The agreement reached by the parties will be their own, in their own words and in their own best interests. When legal representatives are present they often draft the agreement on behalf of their clients. 

The mediator does not develop the agreement and one party will also write or scribe the agreement. The mediator may ask questions to allow the parties to explore all aspects of the agreement, but they will not make suggestions or provide assistance in the drafting or wording or the final document. 

One party or his or her representative will then agree to file the original copy of the mediated settlement with the court if required. 

Q: What if we agree but don't want to write an agreement?

In some types of mediations there may not be the need for a written agreement. This is particularly true when the mediation results in a clarification or a correction of an incorrect perception about an existing court order, procedure, policy or agreement. When this happens the parties may choose not to create a written settlement agreement, or in some cases the complaint that initiated the mediation may be withdrawn. 

In cases where a written agreement is not developed and signed by the parties the mediator will ask the parties the benefits or possible challenges to not developing a written agreement. As with all types of contracts and agreements, only written, signed documents there are advantages and possible disadvantageous to reducing the agreement to writing. 

Q: What happens if an agreement isn't reached?

Although the vast majority of cases that come to mediation do end up in agreement, there is always the option for a non-agreement to exist. In these situations, known as an impasse, the mediator just signs a form indicating a mediation was held on a specific date between the named parties in the dispute and that no agreement was reached. 

Q: What training does a mediator need to have in Texas?

Mardi Winder-Adams has training that exceeds all requirements under the ADR sections of the Civil Code as well as the Texas Family Code. In general mediators in Texas are required to have a basic 40 hour mediation training and an additional 30 hours to of specific family and divorce mediation training to mediate family cases. 

Mediators in Texas can voluntarily credential themselves through the Texas Mediator Credentialing Association. Mardi has been at the highest level, Credentialed Distinguished Mediator, since 2005. More information on mediator credentialing and standards can be found at http://www.txmca.org/index.html as well as at the Texas Association of Mediators website http://www.txmediator.org/.