What is a mediation and do I need a lawyer?

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Mediation is a confidential process where people in a controversy, whether a lawsuit has been filed or not, come together at a neutral site with a neutral mediator in an attempt to reach a settlement.  Mediations are an attempt to avoid costly and lengthy lawsuits.  The mediator strives to achieve a compromise to resolve their differences through creative problem solving.  If the parties are successful, the mediator will assist putting the agreement in a binding agreement which can then be signed by a Judge if a lawsuit has been filed.

People who are contemplating filing a lawsuit, often entertain the thought of attending mediation before expending the time, and emotional investment associated with filing a lawsuit, but often wonder “do I still need a lawyer?”

In short the answer is “it depends.”  Often times in an attempt to save money, people who attend mediation sessions with me, show up without a lawyer.  If only one party shows up without a lawyer I advise them that may not want to proceed so they don’t feel “outnumbered.”  There are other reasons people feel it is important to have their lawyer attend mediation:

1. Mediators are considered “neutrals” and can not give legal advice to either party.  A lawyer at mediation is able to give legal advice during the mediation.

2. Having your lawyer present during the mediation process can help lessen the feeling of vulnerability.  If your lawyer is present it allows you to trust the process and the mediator because your attorney understands the legal system.

3.  If the case is settled it is helpful to have lawyers present to agree on the language used in the settlement document so there will be no objections at a later time.

4.  Mediation is a confidential process.  Only what is written in a settlement agreement can be published outside the mediation.  If the lawyer is present, they have the full picture of what led up to the settlement without any  breach of confidentiality.

5.  A common way to save expense while still having your attorney’s input is to make your attorney aware of the date of your mediation so that they will be available to consult for legal advice during the mediation.

Mary Schneider is a partner in the firm whos practices focuses on family law.  She is a certified mediator and has been conducting mediations involving divorce, custody, and other areas of conflict for more than ten years.  She is used in cases in which the Judge has ordered the parties to mediation and in cases where people have determined on their own to mediate their dispute.

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