Hafemeyer Law

Mediation Services

Nature of the Mediation Process

Mediation is a process wherein the parties meet with a mutually selected impartial and neutral person who assists them in the negotiation of their differences. The parties can choose to have attorneys present or may participate in mediation without attorneys.

Role of the Mediator

Mediation leaves the decision power totally and strictly with the parties. The mediator does not decide what is “fair” or “right,” does not assess blame, nor render an opinion on the merits or chances of success if the case were litigated. Rather, the mediator attempts to bring the parties together by defining issues and eliminating obstacles to communication, while moderating and guiding the process to avoid confrontation and ill will. The mediator may, however, seek concessions from each side during the mediation process.

Procedures

Mediation generally begins with a joint session to set an agenda, define the issues and ascertain the position and/or concerns of the parties. This allows the parties to attack the resolution process either on an issue-by-issue or group-by-group basis. Depending upon the parties, the mediation may continue in a joint session until a resolution is reached.

The joint session may be followed by a separate caucus between the mediator and each individual party or their counsel. This allows each side to explain and enlarge upon their position and mediation goals in confidence. It also gives the mediator an opportunity to ask questions which may well serve to create doubt in an advocate’s mind over the validity of a particular position.

Confidentiality

Mediation proceedings are confidential. No party may use any part of the mediation proceedings or any statement or disclosure made in mediation proceedings in any lawsuit; subpoena any records or documents related to mediation proceedings, except a copy of the Agreement to Mediate; or subpoena the mediator to testify in the matter related to the mediation proceedings.

Issues Which Can Be Mediated

Under Minnesota law, alternative dispute resolution is required in all civil matters, including family court actions. Courts order parties to participate in mediation. However, parties are required to attend only one orientation session and cannot be forced to reach a resolution. The Court cannot order mediation where there is probable cause to believe that there has been physical or sexual abuse between the parties.

Mediation can address all issues in a divorce or custody case. Often, mediation may concentrate on only one aspect of the case, such as only regarding custody in the context of a divorce case.