Portland Mediation Lawyers
More Options for Dispute Resolution
With so much at stake, it’s common for tempers to flare and unhealed issues to surface. Even people who expected to work together calmly may find they cannot do so when the questions are so close to their hearts.
Mediation offers an alternative path for parties to reach an agreement on tough topics without going to court. Attorney David Gearing practices family law with a special focus on mediation in Oregon.
What is Mediation?
Nearly every family law situation involves multiple adults, often a divorcing couple or the parents of a child. Each of these parties may also have their own family law attorney.
Mediation adds one more person to the mix. This person is a neutral third party with experience assisting and guiding families in reaching agreements but without a stake in this particular case.
During the mediation, the parties may discuss the issues on which they disagree. The mediator encourages each side to speak their mind openly. Clear and candid communication helps the mediator understand exactly where each party is coming from.
The mediator cannot force either of the parties to accept an agreement. Rather, the mediator’s role is to:
- Consider the dispute from a neutral “outside” point of view,
- Suggest alternatives or possibilities the parties might not have considered, and
- Help the parties identify common ground and improve their communication.
The mediator does not dictate an outcome nor does the mediator assign blame. A mediator cannot offer legal advice or an opinion on who would win in court. Instead, the mediator focuses on helping the parties reach an agreement in the present moment.
Both parties can have their attorneys attend mediation with them. This can be particularly helpful if you are close to an agreement and want to ensure your agreement meets Oregon legal requirements - or when an agreement might undermine your legal rights without you realizing it.
Mediation is private and confidential. Courts have held that the content of mediation is confidential and protected from disclosure, meaning it cannot be admitted as evidence in court (child or elder abuse reporting are an exception to that confidentiality). If your case eventually goes to trial, your mediator typically cannot be called to testify, and their notes cannot be admitted into evidence.
The goal of mediation is to reach an agreement so that the parties don’t have to endure the stress and expense of a trial.
The courts of this country should not be the place where the resolution of disputes begins. They should be the place where disputes end after alternative methods of resolving disputes have been considered and tried. - Justice Sandra Day O’Connor
A Glossary of Mediation Terms and Definitions
Like many specialties, mediation has its own vocabulary and terms. These terms can be confusing to those who are new to mediation. Here are some of the terms you’re most likely to hear during the mediation process.
In arbitration, both parties submit their case to a neutral arbitrator, who makes a decision. Arbitration is similar to mediation in that the parties do not go to court; instead, they turn to a neutral third party with experience in family law. Arbitration is unlike mediation in that an arbitrator can require the parties to accept a certain outcome. You may have an attorney represent you in arbitration.
Whether arbitration is an option - or the right option - depends on the specifics of your case. Never agree to arbitration without consulting an experienced attorney first.
A “caucus” occurs when a mediator talks to one party and their attorney without the other party in the room. Caucuses are often used to allow the mediator to better understand one party’s perspective or to discuss issues a party may not feel comfortable airing to the entire room.
Confidentiality allows mediation participants to decide what information, if any, can be revealed to people who are not present at the mediation. As a rule, what happens at mediation is confidential, unless the parties expressly agree to release it.
When a case is “dismissed,” it is closed and removed from the court’s “docket” or schedule. Dismissal is usually in one of two forms: With prejudice or without prejudice.
A dismissal “with prejudice” closes a case and creates a legal barrier to bringing the same claim back to court. A dismissal “without prejudice” closes a case, but it allows the parties to bring the same claim to court later if needed.
In a joint session, the mediator, all parties, and the parties’ attorneys are gathered together at the same time. Several joint sessions may occur within a single session of mediation. Joint sessions often alternate with caucuses and discussions between the parties and their respective lawyers.
Litigation is the process of taking a case to trial. It begins with the filing of a complaint in court. Litigation can end in any number of ways. The case may be dismissed, the court may enter summary judgment for the parties, the parties may reach an agreement without a trial, or the case may go to trial.
A mediation conference is a meeting in which the parties, their attorneys, and the mediator gather to resolve one or more disputes. The term “conference” is used because these meetings follow a conference or discussion format rather than a trial format.
An independent, unbiased, neutral party with experience in the area of law and practice that applies to the dispute. Family law mediators, for instance, typically have experience in family law. Mediators work as diplomats to help parties find common ground or think about issues in new ways. A mediator cannot give legal advice to either party.
A pre-conference statement briefly summarizes the facts and issues in dispute. The mediator reads these statements before mediation as a brief introduction to the parties and the issue.
Pre-suit mediation seeks to use mediation to solve a dispute before a lawsuit is filed in court. Some pre- or post-nuptial agreements require pre-suit mediation. In other cases, the parties might agree to try pre-suit mediation before going to court.
Negotiation is a discussion process. Its goal is to resolve an issue by finding a position on which both parties can agree. During mediation, parties and their attorneys suggest possible resolutions. They discuss the pros and cons of each suggestion until they reach a result both parties can accept.
Negotiation can happen inside or outside of mediation. Often, several rounds of negotiation occur before a case concludes.
In a settlement conference, the parties meet with the judge before the trial starts. The judge reviews the parties’ proposed agreement. The goal is to settle the case so it doesn’t have to go to trial.
How Does Mediation Fit Within the Larger Family Law Process?
Mediation can occur before paperwork is filed with a court or after. It can occur early in the process of a lawsuit or, later, near a trial date. Mediation may be the idea of the parties or it may be required by a judge.
Often, a mediator will begin mediation by asking the parties to agree to two things:
- Forbearance from litigation. The mediator may ask both parties to put litigation “on hold” while they are in mediation. This agreement prevents either party from trying to distract or harm the other through litigation while they are mediating - a tactic that can destroy trust and make mediation impossible.
- Confidentiality. The mediator may also ask both parties to keep everything that is said in mediation confidential. This means not sharing anything from mediation with friends, family, or social media. It may also mean that neither lawyer can use anything said in mediation against the other party in court.
These agreements set “ground rules” for the parties’ behavior toward one another. They take certain risks off the table, allowing the parties to focus on the issues and the mediation session.
A judge can require the parties to try mediation, but a judge cannot require the parties to reach an agreement in mediation. If the parties can’t reach an agreement in mediation, the case proceeds to trial as usual. Often, the parties can agree to try mediation again - either to discuss a new issue or to continue working on a previous issue.
Why Should I Choose an Attorney With Mediation Experience?
Mediation is a unique form of dispute resolution. While many attorneys are introduced to the concept of mediation in law school, few receive rigorous training in how mediation works or how to best represent clients during mediation. Lawyers who offer mediation have taken the initiative to learn about mediation during their professional careers.
Attorney David Gearing has taken that initiative and has nearly 40 years of experience practicing family law. David’s commitment to his clients’ best interests has provided him with a deep understanding of the benefits of mediation and its effect on family law cases. This knowledge gives David the ability to provide insightful advice and guidance to clients both inside and outside mediation.
If you’re facing a family law issue, talk to the experienced Oregon family law attorneys at Gearing, Rackner & McGrath today.