Dispute Resolution Services (DRS) : DRS Processes : Mediation

In mediation, a neutral facilitator assists the parties in resolving their disputes. The mediator does not give legal advice to the clients, but does provide information which may assist the parties in understanding their options. The mediator does not make any decisions, but may help generate additional ideas designed to meet their needs and those of other affected persons (such as their children) or entities (such as a family business). The mediator also assists the parties with communication and, if necessary, referees their discussions.

Definitions of Mediation
Rule 114 of the Minnesota General Rules of Practice for the District Court defines mediation as "A forum in which a neutral third party facilitates communication between parties to promote settlement. A mediator may not impose his or her own judgment on the issues for that of the parties."

At DRS we agree that effective communication and reduction of acrimony are crucial. We also believe in a broader definition of mediation – a process which includes the following steps:

1. Create joint and individual goals
   
   
2. Agree on topics to be mediated
   
   
3. Gather, review and discuss facts
   
   
4. Identify and prioritize needs and wants
   
   
5. Explore all reasonable options for settlement
   
   
6. Make agreements – after consultation with attorneys

While Rule 114 describes mediation as a "facilitative" process, some mediators are more directive or evaluative. At DRS, we believe that different facts and circumstances require different styles, all of which may occur in a single mediation session. Our mediators are skilled in using the right style at the right time. More about Mediation Styles.

Information Gathering in Mediation at DRS
In parenting matters we ask our clients to review our Parenting Plan form and decide if they wish to provide information about their children’s needs in that manner. For financial cases in which our clients have not yet provided information to their attorneys, we ask them to complete detailed financial worksheets and to provide documentation of values and other facts.

Limited Unilateral Communication
Because mediation is defined as a facilitative process, Rule 114 allows parties and their counsel to communicate ex-parte (that is, unilaterally, with the neutral if the neutral consents, so long as the communication encourages or facilitates settlement). At DRS, we are careful to avoid any conversations which may threaten the mediator’s neutrality, or the appearance of lack of neutrality. (Many parties are understandably reluctant to allow a conversation between the mediator and other party.) We err on the side of avoiding ex-parte communications, except when parties agree in advance of the communication.

Confidentiality
Pursuant to law, mediation is a confidential process. This means that statements made in mediation are not admissible at trial. This gives the participants the ability to discuss all types of possible agreements, without being concerned that the court will find out about such discussions. Written settlement proposals are also inadmissible. However, documents provided in mediation which are otherwise "discoverable" are admissible. This means that if a party provides information which the other party has a legal right to receive, such information can be put into evidence in the event of a trial.

The confidentiality of mediation extends to the notes, records, and recollections of the neutral. According to Rule 114, this means that they shall not be disclosed to the parties, the public, or anyone other than the neutral, unless (1) all parties and the neutral agree to such disclosure or (2) disclosure is required by law or other applicable professional codes. No record shall be made without the agreement of both parties, except for a memorandum of issues that are resolved.

Role of Attorneys in Mediation
At DRS, many of our mediation clients are referred by their attorneys. While we respect our clients’ needs and desires, we strongly urge unrepresented clients to hire attorneys, at least for certain purposes. One purpose is to become educated about the mediation process and the law related to their particular fact situation. For the most part the parties may agree to any outcomes which both consider fair and reasonable. However being informed about the law – as a “backdrop” to their discussions – before making any agreements, usually lead to better agreements. Another purpose is to have an attorney available to answer questions, make useful suggestions, and red-flag any concerns during the mediation process.

We find that such consultation results in a shorter (therefore faster and less expensive) mediation, as well as agreements which stand the test of time. Finally both clients should have an attorney review their agreements before they are finalized, and one attorney will need to draft the papers for the court.

In some cases, a client may choose to have his or her attorney attend each mediation session with the client. Since each client must be comfortable in order for the mediation to succeed, we respect a party’s desire in this regard. To avoid an unbalanced situation, if one attorney is to attend, the other attorney must attend as well. Sometimes the mediator suggests attorney attendance, most often to support the parties and/or provide reality checks. In some cases, attorneys never attend sessions. Most often the parties mediate without their attorneys until it is time to "put the pieces of the puzzle together" or to resolve difficult topics. At that time, attorneys are invited into one or more "wrap up" sessions.

Others of our clients wait until they have made their tentative agreements before hiring an attorney to review the agreements. We respect our clients’ desires, but will suggest an earlier hiring, if needed, for support, legal education or "reality checks."

Abuse
Under Minnesota law (Minnesota Statutes §518.619) the court may not order parents to mediation if it finds probable cause that one of the parties, or a child of a party, has been physically or sexually abused by the other party. At DRS, we also pay attention to concerns about other types of abuse, including emotional abuse. The subject of whether cases can be mediated if there has been abuse is complex and hotly debated. In private mediation, some abuse survivors may choose to mediate. In that event, the processes are modified accordingly and safeguards are put in place. At DRS, we require that any client who has a concern about abuse be represented by counsel. We also require that such person consult with her or his attorney about whether mediation is appropriate before starting to work with DRS.

Mediation Providers
Mediation services are provided by all DRS neutral professionals.

How to Get Started in Mediation with Dispute Resolution Services

• Complete the online New Client Enrollment Form by clicking here. Or your attorneys may complete this form for you by accessing the following link: http://www.drsmn.com/new_clients/new_client_form.aspx

• Attend a free 30 minute Orientation with your spouse, partner or other participant(s) at our Edina office. In this meeting, you will get acquainted with your mediator and learn more about the process, and your mediator will respond to your questions and concerns.*

• If appropriate, participate in designing and planning your mediation:

• If you decide by the end of the free 30 minute Orientation to hire DRS, you will move right into a Design and Planning Meeting, which usually lasts another 30 minutes. The purpose of this meeting is to design and plan for a process which will be efficient and effective for all parties. For this meeting, you will be charged a flat fee equal to ½ hour at your mediator’s hourly rate, with payment due at the time of your first mediation session.

• If you choose to hire DRS at a later date after your free Orientation, you and your mediator will be have your Design and Planning meeting by telephone conference call. For this telephone conference, you will be charged a flat fee equal to ½ hour at your mediator’s hourly rate, with payment due at the time of your first mediation session.
  
  
• The Design and Planning Meeting includes:
  
  
  • Creating a process which will be comfortable, safe and secure for all parties. 
    
    
  • Identifying any difficult topics and make a plan for how to address them in the mediation process.
    
    
  • Beginning to teach the parties how to make their communications and behavior as effective as possible.
    
    
  • Discussing the role of attorneys and begin to explore the need for any neutral experts.
    
    
  • Planning for the first session, including urgent topics, information gathering and any other preparation.
    
    
• Schedule your first Mediation Session. This can be done during your Design and Planning meeting or later by telephone or email.

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