Mediation is a confidential, voluntary, problem-solving process by a neutral third-party. Efforts are made to make the setting safe and neutral. Discussions are facilitated by an impartial third party, the mediator(s), who encourages and assists the parties in communicating their needs and desires and in brainstorming possible creative solutions. The goal is to reach a resolution that is designed and acceptable to both parties. There is no pressure to reach a settlement and the process is voluntary. The mediator has no power to make a decision or force a particular result on either party.
A professional mediator is a trained neutral who helps parties to understand the underlying reasons for the disagreement, communicate and identify their own needs, interests, concerns and underlying issues; identify the needs of others (including children and others who may not be part of the mediation process), and look at possible solutions. The mediator may recommend other resources that might assist the parties and may address any other issues, ideas and emotions that are affecting the parties. The mediator uses her experience to “brainstorm” or identify possible solutions, solve problems and reach a decision all can live with. The mediator may also sometimes reduce an agreement into a written form, often called a Memorandum of Understanding (MOU). The mediator may not force or enforce agreements.
Mediators do not have to be attorneys. Although I am an attorney, I am not working as a lawyer for either party when mediating. As a neutral third-party mediator, I am not representing either party and cannot provide legal advice to either party. The parties are always encouraged to review any proposed agreement with their own attorney. Attorneys are welcome and encouraged to attend the mediations. Lawyers often serve as important resources during the mediation by assisting clients to identify and assess options and to determine if proposed options are in the client’s best interests. Attorneys are not required to attend, however.
Discussions held in mediation are considered confidential if resolution does not occur. This means one party cannot use what the other party has said, offered or remarked during the mediation at a later court proceeding. Of course, if an agreement is reached and reduced to a signed writing, the document itself is generally not considered confidential. The mediator generally cannot be called to testify as to what took place during the mediation. There are exceptions to this rule if threats to the life or safety are made of a party, a child of a party or another person or if a party admits to commission of a crime.
Lynn Landis-Brown is a Family Lawyer in Colorado Springs, Colorado, where she founded Lynn Landis-Brown P.C. She listens compassionately and understands your legal, emotional and financial concerns due to her own experiences of divorce from her parents divorcing, her own divorce and now as a step-grandmother. With her background in litigations, she has great experiences with fighting for your rights in the courtroom.