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Markowitz & Piro - Law and Mediation
Markowitz & Piro
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About Mediation | Divorce | Elder Care | Questions
About Mediation

In most conflicts, the more traditional dispute resolution processes of litigation or attorney centered negotiations tend to exacerbate the conflict and leave the parties feeling powerless and uncertain about the outcome of litigation. Even if a party "wins" he or she often feels a lack of satisfaction.

In Mediation, on the other hand, the parties decide all aspects of the resolution of their conflict with the assistance of a neutral and objective Mediator. This means that they have complete control of the process of resolving the issues, as well as the terms of the settlement itself. In addition, the Mediator can help the parties learn how to communicate with each other in a more productive way and to use these skills on their own to resolve any future differences.

In Interest Based or Understanding Based Mediation, the Mediator will work with the parties to reach a resolution of their differences through improving their understanding of the issues and the other person’s point of view. In this way, each party has the opportunity to express his and her point of view and is given support equally. Once the party’s interests and motivations are expressed and understood by the other, it makes it easier for them to devise creative solutions to their disputes together and to reach a mutual agreement which satisfies both parties’ needs. This process works best where both parties want a definitive outcome.

In Transformative Mediation, the Mediator works with the parties in conflict to help them change the quality of their interaction from negative and destructive to positive and constructive as they explore and discuss issues and possibilities for resolution. In this type of Mediation, the emphasis is more on opening up communication so the parties can hear the other person’s point of view than on achieving a settlement of an issue. This type of Mediation is particularly useful in employment, elder care or neighbor disputes.

No matter what style of mediation is practiced, the key to a successful Mediation is for all parties to feel they can express themselves in a non-confrontational, non-adversarial environment, and the Mediator will maintain that safe environment. If the parties reach an agreement that must be reduced to a written agreement, the parties may then want to seek the input of individual review attorneys before executing any agreement.

Divorce Mediation

Divorce is a traumatic and painful emotional experience for the divorcing couple and their family, and unfortunately the negative aspects of divorce are often exacerbated in the more traditional dispute resolution processes of litigation or attorney centered negotiations in which the clients feel powerless and without control over the process of divorce.

In mediation, on the other hand, the parties decide the resolution of their conflict with the assistance of a neutral mediator. This means that the divorcing couple has complete control as to the process of resolving the issues of their divorce, as well as the terms of the settlement itself. In addition, the Mediator can help the couple learn how to communicate and fully understand his or her spouse and hopefully learn to use these skills on their own to resolve any future differences.

In interest based mediation, the Mediator will work with the couple to reach a resolution of their differences through improving their understanding of the issues and the other person’s point of view. In this way, each party has the opportunity to express his and her point of view and is given support equally. Once the party’s interests and motivations are expressed and heard by the spouse, it makes it easier for them to devise creative solutions to their disputes together and reach a mutual agreement which satisfies both parties’ needs, as well as the needs of the entire family.

The key to a successful mediation is for both parties to feel they can express themselves in a non-confrontational, non-adversarial environment, and the mediator will maintain that safe environment. Does that mean that the couple will never express anger or frustration? Absolutely not. They are still going through a very difficult time and are not expected to be dispassionate. However, mediation will open up communication between the parties and into an understanding of their spouse’s needs and interests.

Once the parties have reached an agreement that is suited to the needs of their particular family, a Separation Agreement is drafted, and it is recommended that the parties then seek the input of individual review attorneys before executing the agreement. The parties can then file for divorce immediately alleging fault grounds or wait for one year and seek a divorce based upon living separate and apart for over a year under a written Separation Agreement.

Elder Care Mediation

Unfortunately, the blessings of a long life can also be accompanied by disharmony within a family over issues of health, nursing home placement and proper care of an elder person. The children may have different views from their parents, or siblings may argue with each over whether their dad should be in a facility or cared for at home. A mother can feel that her children are forcing her out of her home for no reason and that decisions are being made for her without her input.

Eldercare family disputes are well suited to resolution through mediation. The mediation process provides a forum for all interested parties to speak in a safe environment: the elder person, a caregiver or some other person who is there to help the elder person feel comfortable in the process, and the children. It can also include other relatives or friends who are supportive of those who are important to the decision making process. A trained mediator can insure that all voices are heard and understood by the other parties. The mediator may help the parties brainstorm a resolution, but the emphasis on this type of mediation is to improve communication among the various parties.

The mediator will work with the parties in conflict to help them change the quality of their interaction from negative and destructive to positive and constructive as they explore and discuss the issues they want to discuss along with possibilities for resolution. The mediator is there to support each party’s deliberation and efforts to understand the other’s perspective without encouraging any party to adopt any particular point of view or resolution.

Frequently Asked Questions

Mediation FAQ
Do The Parties Need a Lawyer?
During the mediation process itself, the parties will not need an attorney, but they are free to consult with an attorney either before or during the process if they feel that they want legal advice. The Mediator will not be acting as a lawyer for either party and cannot provide legal advice. Also, the parties may agree to bring attorneys to the Mediation sessions, but that would increase the cost of your Mediation. At the end of the Mediation, and depending upon the type of Agreement that is reached, it may be recommended that the parties review the agreement with their own counsel before they sign the agreement.

Who Attends A Mediation?
All parties who are necessary for the decision making process must be present. In addition, as long as all parties and the Mediator agree, an individual may bring someone to the mediation for purposes of support or advocacy.

Is Mediation Mandatory?
No. Mediation is a voluntary process, and both parties must agreed to mediate.

Why Do Mediation?
1. Mediation not only saves on the financial and emotional cost of litigation and on the increasing length of time it takes to complete a litigation, but it is particularly well suited in conflicts in which the parties will have an ongoing relationship, such as parents raising a child together, neighbor disputes or employment disputes.
2. Mediation can save money, time and effort and eliminates the uncertainty of results.
3. Mediation provides an opportunity for everyone to meet one another, share thoughts and understand one another’s position.
4. Mediation allows the parties to vent.

What Qualities Do You Want In A Mediator?
1. Sincerity.
2. Unbiased outlook.
3. Good listener.
4. Patient.
5. Experience as a mediator.
6. Experience in the subject matter.

Misconceptions About Mediation
1. The mediator decides the settlement reached by the parties. To the contrary, any agreements that are reached are made by the parties.
2. The parties are too far apart to mediate. All parties in conflict have different points of view, but common interests can be found.
3. Mediation can only be done after a lawsuit is filed. Mediation can be done at any point but generally serves to avoid litigation so it is most commonly begun before other types of conflict resolution are used.

Elder Care Mediation FAQ
My Mother Is In The Early Stages of Dementia. How Can She Be A Party To This?
The mediator will screen for the capacity to mediate to insure that the party understands the nature of the mediation process, assess options and make and keep an agreement. However, capacity is not an “all or nothing” phenomenon, and capacity can fluctuate over time. The mediator will strive to enhance a party’s capacity so that the mediation can involve the elder person even if she is not always completely lucid. For example, it is likely that a person has periods in the day when she is more clear, and the mediation would be scheduled during such periods.

Where Would The Mediation Take Place?
In consideration of the health issues of the elder party, the mediation can occur in the home or at a nursing home facility. The paramount issue is that the elder party is comfortable and at ease.

If I Suspect Abuse, Can I Still Mediate?
In any case where there is concern that an elder person is the victim of abuse, the appropriate authority should be contacted to insure the safety and well being of the elder person. Once that is done, however, a mediation may occur provided that the agency permits it and that appropriate measures are taken to insure the safety of all participants.

Who Can Attend A Mediation?
It is imperative that all parties who are important to the process are present, so these mediations tend to be multi party. In addition, parties may have a support person there if they wish. For example, an elder person may want his social worker or trusted friend to help him speak on his behalf.
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.
 
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