Maryland Mediation Blog

Before you contact a mediator sort out what you want to mediate. Have an idea what you want from mediation. Keep in mind the person with whom you have a dispute may not trust you and therefore has no reason to agree to use the mediator you choose. If you can convince him/her to consider mediation, you might want to give him/her the contact information of two or more mediators, then discuss with each other which mediator to use.

Before mediation consider whether there are any terms under which you would consider settling your dispute. While you may be certain your argument is stronger, keep in mind you may obtain new or additional information at mediation which may allow you to see things differently. If, however, there are absolutely no terms under which you would consider settling, consider whether mediation is worth your time. You may prefer to gamble and let a judge decide your destiny.

Prior to mediation you will receive an agreement to sign. The agreement is a list of terms to which you agree when you mediate, including, but not limited to, a confidentiality statement, which states what is said in mediation is not to be repeated to anyone else without the permission of both parties. Additionally, if an agreement is not reached and the matter goes to court, neither party may quote in court what was said in mediation. Furthermore, the mediator cannot be subpoenaed to testify in court.

A neutral third party, my goal is to level, and keep the "playing field" level. When mediating conflicts related to separation and divorce, which are not referred to me by the court, if one party has an attorney and the other does not, I prefer the attorney, in the interest of balance, not attend the mediation. Furthermore, if the matter is domestic, and has been referred by the court, attorneys usually choose not to attend. However, in other civil, non-domestic matters attorneys frequently attend mediation.

It is not necessary to bring a stack of documents to mediation with you. The mediator will not review the documents in order to decide which party wins or loses. However, bringing to the mediation a list of issues you consider relevant to your dispute may be useful to ensure you address each one or include them in a summary of the facts.

If an agreement is reached in mediation, the parties may request the mediator draft a document which memorializes the terms of the agreement. I advise parties to contact an attorney for the purpose of reviewing any Agreement I draft prior to each party signing the Agreement. Keep in mind, should one or both parties violate the Agreement, the mediator is not responsible for enforcing its terms. The parties may, however, petition and seek a remedy from the court.

Mediation is voluntary. There are no up front retainers, and you pay as you go. Fees for mediation vary. In my Maryland mediation practice the fee is based on an hourly rate and is due at the time of mediation. Prior to attending the mediation session, the parties are expected to decide between themselves how the fee will be divided among them. Mediation sessions are usually scheduled for a minimum two hours. You may, however, try an introductory session, which is one to two hours. Should you find mediation is of no benefit to you, you are under no obligation to continue.

In the State of Maryland, where I practice mediation, the Code of Maryland Regulations provides "all students in Maryland's Public Schools, without exception, and regardless of race, ethnicity, region, religion, gender, sexual orientation, language, socioeconomic status, age or disability have the right to educational environments that are safe; optimal for academic achievement; and free from any form of harassment." Unfortunately, as in all other States, bullying also occurs in Maryland schools. Students who are bullied have difficulty defending themselves and consequently their ability to benefit from the education and activities offered in school are adversely affected.

Bullying occurs where there is an imbalance of power and strength and one or more students repeatedly and aggressively victimize another. Students who bully may use physical force or engage in other behaviors to gain power over students who are perceived as weaker or vulnerable. Bullies may harass their victims in other ways where adults will not typically notice, for example via email, texts, and instant messages. Online harassment and threats may be reported to police and Internet Service Providers. Bullies have a difficult time recognizing or appreciating others' feelings. Adult intervention is often necessary to stop bullying. However, teachers, school staff, and other adults need to ensure victims are not additionally harmed when an adult steps in to help.

Schools need to be receptive to reports of bullying, ensure that staff respond quickly, and that adequate follow-up is made.Teachers, bus drivers, librarians, cafeteria workers, school nurses, and all non-teaching staff need to address the issue of bullying if it happens on their watch. Additionally, students and parents must be provided information about the rules and consequences related to bullying.

Students who witness bullying should be expected to report what they saw, and educated about bullying and what is expected should they witness it again. Role playing is a useful method of teaching students about bullying, expected responses by witnesses, and how to interact socially in order to reduce the likelihood of future bullying. Additionally, bullies may need help related to aggressive behavior or violence they experience outside of school and/or in their home lives.

Teachers and school administrators can include the subject of bullying prevention in the curriculum. For more information for adults, educators, and students visit the website of the U.S. Department of Health Resources and Services Administration. Additionally, the Maryland State Department of Education offers a Power Point presentation on Bullying Prevention.

One would expect when a relationship ends, the parties "disengage." Instead this is often when the war begins. This is especially true when one party was ready, and terminated the relationship, leaving the former partner shocked and/or not ready to end the relationship.

When a former partner is not ready to end a relationship, the party who ended the relationship may continue to receive unwanted communication from the former partner. Goodwill may prevail and the party who ended the relationship may respond to the former partner. However, a condition of response may be respect of boundaries by the former partner. An example of respecting boundaries may be the former partner agreeing not to bring up emotional issues, or only discussing business issues.

When the party who ended the relationship is bombarded by the former partner with issues that cross the line, i.e., dishonor the boundaries, total disengagement may be necessary. The former partner may be unable to understand or deal with total disengagement, and in fact escalate behavior in an effort to engage the party who ended the relationship. Depending on the escalation of behavior there are a number of alternatives.

Mediation offers each party an opportunity to accomplish their objectives. The mediator is a neutral third party who can help the parties communicate. The party who ended the relationship may need to acknowledge that the former partner has emotional issues related to the termination of the relationship. The former partner may need to acknowledge there are issues which violate the boundaries of the party who ended the relationship.

By definition, the mediator, a neutral third party, should not have an association with either party. Parties in conflict do themselves a disservice when they ask a family member, friend, or co-worker to mediate. A trained mediator, who does not have an association with either party is qualified to assist the parties communicate effectively and resolve conflict.

When a relationship ends, so too should the war. Parties who disengage do not continue to do battle. Mediation assists parties who are terminating relationships to unravel domestic and/or business relationships, which makes the business of disengaging less complicated. The  communication skills used in mediation benefit former domestic and/or business partners which allows them to move forward and not perpetuate the war.

The following is a summary of what happens during mediation in my practice here in Maryland.

INTRODUCTIONS

In the beginning, there will be introductions.

HOUSEKEEPING

The mediator will review the mediation process and make sure all people (also known as "parties") necessary to the decision is present. Additionally, reviewed is the mediator's fee, that it is due at the conclusion of the session, and the parties, unless they otherwise agree, will split the fee.

GROUND RULES

The mediator will review the ground rules and ask the parties to sign a form called "Agreement To Mediate." 

FACT FINDING

The mediator will ask each party to explain the reason s/he has come to mediation and what each party wants to achieve at mediation.

SUMMARIZATION and CLARIFICATION

The mediator will summarize what is said by the parties, and what is understood from the statement of each party. The mediator will ask for clarification of anything said that is not clear.

ISSUE IDENTIFICATION

After listening to each party the mediator will review and/or identify with the parties the issues which are relevant to the dispute.

OPTION GENERATION/BRAINSTORMING

The mediator will assist the parties with brainstorming and help develop a list of options or alternatives. This is a time for each party to be creative. Even though the other party may not agree, a list of possibilities for negotiation will be created.

NEGOTIATION

The mediator will help the parties to consider the possibilities and/or problems associated with each option.

AGREEMENT

When an agreement is reached, the mediator will assist the parties craft language which accurately states the terms of the Agreement. The mediator will assist the parties to ensure the Agreement is practical and workable and the parties will be able to live with the agreed terms.

CLOSING

The mediator will make closing remarks and ask each party to do the same.

In my mediation practice here in the State of Maryland, I assist people (also referred to as "parties") who are having a dispute . People often choose mediation in order to arrive at a fair, practical, and final agreement in the most affordable way possible.

Mediation is voluntary. Should you try mediation and not like it, you may still litigate and go to court. Mediation is fair, confidential, and allows the parties to maintain their dignity. Parties in dispute may be, or have been, in a relationship, such as friends, domestic partners, spouses, ex-spouses, business associates, neighbors, employers, employees, or members of an organization, to name a few. The mediation process assists parties to resolve disputes as well as maintain or repair relationships.

Mediation is less expensive than litigation. The parties usually split the hourly fee of the mediator. In the alternative, if the parties choose to hire attorneys and sue each other, the parties each pay attorney fees.

In addition to hourly attorney fees, parties who litigate pay a retainer to an attorney. The retainer is a deposit, or down payment, for services to be rendered by the attorney. There are additional costs associated with litigation, including, but not limited to, court costs, and service of process. Mediation does not require the payment of retainers, and the costs associated with litigation.

Mediation allows the parties to resolve a dispute more quickly than litigation. The parties rather than a judge decide the terms of agreement that work for them.

Left to the stranger in a black robe, there will be a winner and a loser when the parties pursue litigation. Unlike a judge, a mediator does not decide which party wins or loses. Mediation allows the parties to control the outcome of their dispute and find a win - win solution.

A mediation session can be scheduled promptly, whereas parties may wait months to get into a court of law.

While waiting months to get into court, existing relationships between parties may be strained to the breaking point. Mediation provides the parties with the tools to maintain existing relationships.

Mediation also provides the parties the opportunity to have the terms of their settlement drafted into an Agreement by the mediator. Once signed by the parties, a mediated Agreement is binding.

A mediator is an impartial or neutral person, who is a go-between, or link between two or more people. The other people may be referred to as "parties." A mediator does not give legal advice even if the mediator is an attorney.

The parties participate in mediation because they have a disagreement, or conflict they have been unable to resolve. The parties choose to use a mediator to assist with the negotiation process. In many cases here in the State of Maryland, the Circuit Court orders parties to attend mediation prior to appearing in front of a judge.

A mediator identifies and reveals to the parties any potential conflicts prior to beginning a mediation. Additionally a mediator explains the mediation process, and the fact mediation is, within the framework of the law, confidential.

A mediator assists the parties to identify and prioritize the issues relevant to the dispute, remain on track, and discuss the issues identified. A mediator assists the parties with brain - storming, creative problem solving, and identifying options for settlement.

A mediator recognizes the parties' emotions may be an obstacle to negotiation, assists the parties to express and manage emotion during mediation, and to move forward with negotiation. A mediator has good speaking and listening skills, is aware of, and interprets the non-verbal language "spoken" during mediation.

Mediators have different professional backgrounds, personal styles, and training. Parties may evaluate these variables in light of the particular dispute to be mediated.

A mediator's knowledge and experience of the practice of conflict resolution, negotiation, and mediation, are significant to parties who are choosing a mediator.

Where relevant, a mediator suggests to parties the need for outside advisers, e.g., accountants. With the consent of each party attorneys, accountants, and/or other advisers may join the parties in the mediation. The presence of outside advisers does not alter the confidentiality of the mediation.

Mediation is a process, or method of problem solving. It is an alternative to litigation or government involvement in a dispute or conflict.

Mediation does not look like a prime time adversarial court room drama. Click on the following link for photos of how mediation looks, www.mdmediator.com in my Maryland practice.

The mediation process empowers people (also known as "parties"), in dispute to sit in the same room with one another, along with a neutral third party (known as a mediator), and identify, and discuss the issues relevant to the dispute. The mediator will not choose the winning or losing argument. The mediator will not order the parties to include certain terms in the settlement agreement.

During mediation, the mediator assists with the communication process and helps each party to be heard respectfully. The parties take turns speaking and have the opportunity to speak in a non-hurried environment.  

Emotions may get in the way of parties negotiating. The mediator helps the parties express and manage emotion during mediation, and move forward with negotiation.

How long mediation lasts depends on the parties, and the mediator. Scheduling a session for two or three hours is common for personal or family disputes. Business disputes may be scheduled for half or whole day sessions. In both scenarios additional time is made available.

At the request of the parties, the mediator drafts the parties' Agreement, which when signed by the parties is binding.

Mediation provides the tools for the parties to arrive at an agreement which is fair and practical. The likelihood the parties will be satisfied and honor the terms of the agreement are greater when the parties create their own settlement rather than submitting to one dictated by the stranger in a black robe in a court of law.