Frequently Asked Mediation Questions
(Mediation FAQ)
Have basic mediation questions?
We’ve provided answers to some of the questions we hear most often about the mediation process, attorneys, agreements, confidentiality, safety, and what to expect during mediation.
Have More Mediation Questions?
Do I need an attorney for my divorce or civil suit?
Having an attorney is not required to participate in mediation. You may choose to attend mediation on your own, or you may have an attorney represent you and participate in the mediation with you.
If you are considering mediation without an attorney, you should understand that a mediator is a neutral third party and cannot provide individual legal advice or act as your attorney. However, mediation does not mean that you are expected to negotiate blindly. Mediators can explain the mediation process, identify legal or practical concerns with proposed solutions, discuss potential best- and worst-case outcomes, and provide information about applicable laws, judicial requirements, and commonly accepted standards that may affect whether a proposed agreement can be approved by a court.
You may also choose to consult with an attorney before mediation, during the process, or before signing a final agreement.
If I don't have an attorney represent me, how does the dispute get resolved or moved forward?
If an agreement is reached in mediation, the mediator will help the parties identify and resolve the issues necessary to create a complete agreement. The mediator may also identify provisions that could conflict with applicable law, court requirements, or commonly accepted judicial standards, and help the parties explore alternative solutions.
Once the parties reach an agreement, the mediator prepares the written agreement and Mediation Report for the parties to review and submit to the court, when applicable.
If only some issues are resolved, the agreement can address those issues while the remaining matters continue through the court process. If no agreement is reached, the parties retain their right to continue pursuing their case through the appropriate legal process.
A mediator cannot provide individual legal advice or act as an attorney for either party. However, the mediator’s role is much more than simply facilitating conversation: the mediator helps the parties understand the process, evaluate potential solutions, and work toward an agreement that is practical and capable of being implemented.
Can our mediator make a decision for us?
No. In mediation, the mediator does not make decisions for the parties. The parties retain the authority to decide whether to accept, reject, or modify a proposed solution.
However, a mediator is much more than a referee. The mediator guides the parties through the negotiation process, helps identify the issues that need to be resolved, and can discuss potential solutions and their practical or legal implications. A mediator may explain applicable laws, court requirements, judicial norms, and potential best- and worst-case outcomes so that parties can make more informed decisions.
For example, if parties in Florida propose an agreement that eliminates child support, the mediator may explain that parents generally cannot simply waive a child’s right to child support and that the proposed provision may not be acceptable to the court. Similarly, if a proposed division of marital assets is significantly outside what would ordinarily be considered a reasonable distribution, the mediator can identify that concern and help the parties explore alternatives.
The mediator does not tell either party what they must agree to, provide individual legal advice, or guarantee that a court will approve a particular agreement. Instead, the mediator helps the parties understand the issues and work toward a solution that is informed, practical, and capable of being incorporated into a legally enforceable agreement.
Your Mediation Coordinator can also answer general mediation questions about the process and help clarify what to expect.
Do I have to see the other party and talk to them directly?
Not necessarily. If the parties prefer to avoid direct communication, the mediator can use separate Zoom breakout rooms, also known as caucuses, and communicate with the parties individually.
Before mediation, each party completes a pre-mediation questionnaire to help identify potential safety concerns and determine whether the parties should participate separately. If the questionnaire or other information indicates a current protection order, a history of violence, or other circumstances that require separate participation, the mediator will keep the parties in separate virtual rooms throughout the mediation, regardless of whether either party has requested it. The parties will not be required to appear together or communicate directly with one another.
The mediator may also recommend a caucus when it would help move the mediation forward, address concerns privately, or allow a party to speak more openly. Because the mediator must communicate information and proposals between separate rooms, however, caucuses can sometimes make the mediation take longer.
If you have concerns about communicating directly with the other party or about your safety during mediation, please discuss them with your mediator before the mediation begins.
Can I talk to the mediator privately, while in mediation?
Yes. A private conversation between a party and the mediator is called a caucus. A mediator may suggest a caucus, or a party may request one.
A caucus gives a party an opportunity to speak privately with the mediator about concerns, questions, possible solutions, or information they may not feel comfortable discussing with the other party present. The mediator can use this time to better understand the party’s concerns, clarify information, explore possible solutions, and help the parties move toward resolution.
Information shared privately with the mediator will generally remain confidential and will not be shared with the other party unless authorized to do so, subject to applicable law and mediation rules.
What are the main benefits of mediation?
Mediation offers several potential benefits:
Cost: Mediation can be less expensive than taking a dispute through a lengthy court process or trial.
Time: Mediation can often resolve disputes more quickly than traditional litigation, particularly when the parties are prepared to negotiate.
Convenience: Remote mediation allows parties to participate from their own locations without traveling to a courthouse or mediator’s office.
Control: In mediation, the parties—not a judge or jury—decide whether to reach an agreement and what terms will be included. This gives the parties an opportunity to create solutions tailored to their particular circumstances.
Informed decision-making: A mediator helps the parties understand the issues they are negotiating, identify potential concerns, consider possible outcomes, and explore solutions that are practical and consistent with applicable legal requirements.
Mediation is not appropriate for every dispute, but when parties are willing to communicate and negotiate in good faith, it can provide an efficient and collaborative alternative to litigation.
Every mediation is different, and you may have mediation questions about whether mediation is appropriate for your situation or how the process works. AEP Mediation is happy to answer general questions and help you understand the next steps.