Many mediators have a background in law, they are lawyers, legal assistants, or they are otherwise familiar with the legal system. This is for good reason. Although not officially a legal issue, mediation is steeped in processes, procedures, and protocol.
However, some of the best mediators are those who do not have any sort of link to law. They are teachers, church and community leaders, social workers, and people who simply have an interest in helping others. It is important to remember that while a background in law might be useful, particularly in building up a client list to turn mediation into a career, there is no requirement. As long as you are familiar with your state's requirements and feel comfortable taking any real concerns or needs to an attorney, you have all the skills you need to be a successful mediator.
In this article, you will learn about the law behind the practice of mediation.
What are the rights and responsibilities of the parties in mediation?
When is legal counsel or support necessary?
What factors influence the need for formal agreements?
What are the mediator's responsibilities when it comes to agreements and contracts?
The Law behind Mediation
Because mediation is considered an alternative to traditional avenues of legal processing, it is closely allied with the legal system. While many people seek mediation as a way to avoid lawyers, lawsuits, and court dates, rarely is it possible to separate the two entirely, particularly when the issues being addressed have to do with property, money, divorce, and many other topics that have their root in a governmental` system.
Your job as a mediator is to walk the fine line between keeping the courts and the law out of the personal disagreement and honoring the legal implications of mediation. While the parties are allowed to make decisions completely independent of what a court of law might decide, there are still boundaries in what you and the parties can do when it comes to dispute settlement.
For example, you may be helping two divorcing individuals to determine how to separate the assets gained throughout a seven-year marriage. While they may claim to wish to be amicable throughout the whole process, it may arise that both parties really want a particular painting. In the majority of mediation cases, there are three potential outcomes.
1. They may come to no conclusion. This means that the mediation ultimately failed, and unless they can come to an agreement themselves, it is likely that the case will end up in court.
2. They may come to a conclusion but not sign a formal agreement, so that if one party later decides that he or she has is not willing to give up the painting, the process must start anew.
3. They may conclude and sign a mediation agreement. At this point, the mediation outcome is as formal as it is likely to get, and both parties should uphold their end of the bargain. In the event that they do not, it is now an issue for their lawyers and the courts, and you are not likely to play a role.
Rights and Responsibilities
One of the most important things to take away from mediation is that in taking part, the parties are not forfeiting their rights. If the complainant and respondent do not come to any sort of conclusion, or if that conclusion is not written down as a formal agreement, there is nothing stopping either party from moving on to the courts for a further resolution.
The state in which the settlement is made.
Whether a formal agreement was drafted.
The type of formal agreement (for instance, memorandum, moral force, deed of agreement, and so forth).
Whether a formal agreement was filed and registered with a court of law.
In most cases, it is recommended that any agreement that involves money, child custody, or other factors with long term ramifications, be processed through an attorney either during or immediately following mediation. Lawyers should also be sought for advice prior to signing any settlements should the complainant or the respondent have any questions regarding the exact consequences or nature of the settlement.
Honoring Mediation Documents
No matter what state you are in, mediation agreements and signed documents are not required, but they are advised. If both parties feel as though one is not needed, and their lawyers, if applicable, agree, a handshake and a promise for the future are sufficient. After all, the purpose behind mediation is for two parties to come together to work with one another to reach an outcome. It is usually agreed that honoring the conclusions is part of the whole mediation process.
However, in today's society, few people are willing to take a vow and a handshake as a firm promise. This means that mediation agreements, which vary in degrees of complexity, are typically included in the process. Depending on the case and the individuals (as well as their attorneys), the agreement can be as simple as a few words and a signature, or as complicated as a several page document with lawyer reviews before it is signed. Both of these, and all the possibilities in between, are acceptable, as long as everyone agrees that it is the "ideal" outcome. Remember, in mediation, everything needs to be mutually accepted, or the entire purpose of the mediation is lost.
Once a document has been written and signed by both the complainant and the respondent, it is best for a lawyer to handle the rest of the process. If needed, the lawyer will file it in court for a judge to finalize. If there are no lawyers, the parties are likely to turn to you, the mediator, for advice on next steps.
For this reason, many mediators have their own agreement templates and processes, usually done under the advisement of legal counsel of their own. This is not required, but it is recommended if you often handle cases where the parties would like to formalize their outcome. Additionally, many mediation centers have their own attorney on staff to help with precisely these types of situations.
Provide forms or templates for the mediation agreement.
Sign as a witness to the agreement.
Keep a copy, unless directed by the parties not to retain a copy.
Help the parties to determine who will be responsible for filing the agreement with the court.Moral Implications of MediationIntroduction
Most of the time, mediation is all about following procedure and allowing the complainant and respondent to find a solution that suits them. Nevertheless, equally important are the moral implications of mediation: what it means to create a safe environment and comply with ethical standards. Only by looking at a case from every possible angle can you provide the best scenario for reaching agreements that everyone feels good about.
ObjectivesIn this article, you will learn about proper safety and ethics practices in mediation.
- How can you keep the complainant and respondent safe?
- How can you keep yourself safe?
- What are the ethical guidelines in mediation?
- Where can you go for more information on mediation ethics?
Safety in Mediation
When it comes to the moral implications of mediation, one of the most important factors is safety. Not only is the safety of the parties a matter for concern, but also so is safety for the mediator. In today's world, where violence is becoming a more common response to anger or other emotionally charged situations, mediation is one field where safety really can mean the difference between life and death.
Most of the time, mediators working in the fields of divorce, child custody, and employment are the ones most likely to encounter large amounts of emotional distress, and therefore, violence. However, mediators working in other fields should also take precautions to ensure that the setting of the mediation is a safe, comfortable one.To begin, mediators should refer to case intake forms, or a "questionnaire" that sets the groundwork for the potential case. In addition to standard questions on the type and size of the case, these forms should include questions that relate to personal safety, including but not limited to:
- Is there a history of violence or abuse?
- Have any threats, direct or otherwise, been made?
- Does either party have a history of violence or abuse?
- Does either party have a criminal record or a tendency to carry concealed weapons?
While these types of questions may influence a mediator's ability to remain impartial, they are important in determining if a case should be taken in the first place and if so, under what conditions, and in what location. The decision to continue if these factors do come into play is a personal and professional one, but no mediator should take on a case that he or she does not feel qualified to handle from beginning to end.
No matter what type of situation a mediator is stepping into, however, it might be beneficial to create a set of "code words" that allow each participant to indicate if he or she feels threatened. These should be determined independently of one another and in the strictest confidence. It allows the parties to make confidential statements displaying their discomfort, so that the mediator can call a break or "defuse" a heated moment. Not only does this practice help with the issue of safety, but it also ensures an emotionally safe atmosphere, the kind that is conducive to getting to the root of issues and really reaching favorable outcomes with mediation.
Of course, this type of situation might also be alleviated by having the complainant or respondent bring along legal counsel, who can better advise him or her on proceeding safely and comfortably.
Additional steps to take toward safety include (as needed):
While some of these steps might seem extreme, precaution is the only way to ensure the absolute safety of all parties involved.
- Leaving the building at separate times and under escort.
- Choosing a location that has adequate lighting, accessible exits, or even metal detectors, and security personnel.
- Disallowing large, concealing bags in the room.
- Alerting every one of the closest police stations, fire stations, hospitals, or other public "safe" places.
- Performing the mediation during daylight hours.
- Video conferencing and separate caucus rooms.
- Removal of any sharp or potentially harmful objects.
- Providing a space with deliberately "calm" decorations and coloring.
- Pre-arranged seating.
Of course, mediator safety is an issue, as well. While the likelihood of a dangerous circumstance arising from mediation is small, it can and does happen. Here are some best practices you can make a part of regular routine right from the start. By being cautious now, you can avoid potentially harmful situations down the road.
- Do not mediate for friends or acquaintances. Not only is impartiality impaired by mediating for people you know, but you also risk anger, hurt feelings, or safety issues in the future.
- Do not disclose personal information about your life. Like a psychologist or other counseling professional, you should maintain a professional distance at all times.
- Always let contact people know where you are mediating and the cursory details of the case (the parties, the times, and others). This way, someone has access to information about where you are and who might be involved, should something go wrong.
- Practice personal safety techniques. Have someone walk with you to your car, operate in daylight hours, keep a cell phone on you at all times, and so forth. The types of things that keep you safe in your normal day-to-day activities apply here, as well.
Ethics in Mediation
There are no national regulations on mediation ethics as there are with many other professions (for example, in law and in health care). However, most mediators agree to a general set of standards that allow them to perform their duties fairly, morally, and ethically. Because mediation is a voluntary, non-binding process, remaining ethical is purely a matter of choice. However, it is hoped that every mediator feels strongly about maintaining the right amount of professionalism. It keeps everyone safe and it keeps everyone closer to his or her goal.
For more information on some of the common ethical guidelines in mediation, please visit the Association for Conflict Resolution (http://www.acrnet.org/). Remember that state regulations vary, and all mediators must comply with local law no matter what the ethical guidelines suggest.
- A mediator should be clear about his or her role, as well as the role of the involved parties. It should be stated that a mediator is not a substitute for legal counsel, and that all outcomes of the mediation are non-binding unless an agreement is signed and filed with the courts.
- A mediator should feel that both parties are aware of the repercussions of the mediation outcome. Anyone who has questions about the agreement or settlement should be directed to an appropriate professional for more information, especially before signing anything.
- A mediator should emphasize the voluntary nature of mediation. Both parties must feel that they are free to leave at any time without fear of repercussions, legal or otherwise.
- A mediator needs to be properly trained and educated. Never take on a case that is beyond your scope of understanding or experience. Ensure that you are familiar with the right procedures and paperwork to do your job well.
- A mediator needs to honor confidentiality. Even if confidentiality is not expressly stated or required, you should never disclose information unless it is potentially dangerous to one or both of the parties.
- A mediator must remain impartial. You will have access to a great amount of information on the complainant and respondent's pasts. You cannot use this information to sway the proceedings. If you feel as though you are no longer impartial or if there is a conflict of interest, you must withdraw from the case immediately.
- A mediator should not provide legal advice. Only lawyers hired by the complainant or respondent should offer legal counsel. Likewise, financial advice should also be referred to the proper advisors. (Note: Mediators should also refrain from marketing the services of any professional in these fields at this time).
- A mediator cannot guarantee results. No one can predict the outcome of mediation, and to promise anything is misleading and potentially harmful.