While nothing will ever take the place of in-person mediation, the need for creativity in effectively and efficiently resolving disputes and all types of lawsuits has never been more prevalent than now, amid the COVID19 outbreak.
The good news is two-fold. First, remote and virtual mediation is nothing new. Both telephonic and video conference mediation has been around since technology met the practice. In fact, many cases are ideally suited for these venues for a common reason: the parties are permanently geographically disconnected from one another. Cases like Intellectual Property disputes, Military Divorce and post-Divorce issues have and will continue to need remote and virtual mediation as their primary venue choice. Second, because technology advances so quickly, we are better able to replicate in-person mediation as time goes by.
Remote and virtual mediation - like any other function that is dependent on technology - has its challenges: security of the platform, the parties and attorneys familiarity and comfort with these platforms, and the mediator's capability to effectively move mediation forward in a productive and efficient manner in the virtual environment. Like many mediators, I have used various video conference platforms for mediation with decent to limited success. Many platforms serve their designed purposes well, but every video conference experience is still at the mercy of each participant's computer/device, their individual Internet connection, and any software that is involved.
To address concerns of security and reliability, I use Mediation Suites exclusively for remote/virtual mediation for very simple, and straight-forward reasons:
Remote/virtual mediation is a proven method for providing Access to Justice directly to the parties/litigants where they live and work in all types of disputes and lawsuits. Remote/virtual mediation saves the parties more time, more money, and more emotional distress by mediating their cases sooner, by eliminating the need for driving to an attorney's office, looking and paying for parking, taking time off work (that they may or may not have to spare), and paying for additional childcare. Remote/virtual mediation isn't a thing of the future... it's here, it's improving people's lives, and it's here to stay.
WHAT IS THE MEDIATOR’S ROLE?
The mediator is not a judge and does not make a decision or impose a solution on the dispute. Rather, the mediator helps those involved in the dispute talk to each other, thereby allowing them to resolve the dispute themselves. The mediator manages the mediation session and remains impartial.
HOW DOES MEDIATION WORK?
At the mediation session each person involved in the dispute presents a summary of his or her point of view. If you have an attorney, he or she may go with you to the mediation session if you want. The mediator will meet with everyone together and may also meet individually with each side. This offers participants the opportunity to communicate to the mediator their real interests in the dispute as well as to vent anger or frustrations outside the presence of the opposing side. The mediator will work with each person until an agreement is reached that is acceptable to everyone. The agreement is put in writing and signed by the people involved, with the advice of their attorneys.
HOW LONG DOES MEDIATION TAKE?
The time required for mediation varies. It depends on the complexity of the issues and the concerns of the people involved. It may be necessary to meet with the mediator more than once.
WHO PAYS FOR THE MEDIATION?
The cost of mediation is shared equally by the persons involved unless they agree otherwise. You should know in advance what the mediator charges and when payment is expected.
WHAT TYPES OF DISPUTES CAN BE MEDIATED?
WHAT ARE THE BENEFITS OF MEDIATION?
When parents come before the court with a complaint for divorce, the court mandates the submission of a "parenting plan". Mediation is often used to develop such a plan. Mediation is a process in which parents who are in conflict come together with a neutral third person who assists them in reaching a mutually agreeable settlement. The mediator helps parents clarify the issues, consider the options, and reach a workable agreement that fits the needs of their children.
Mediation is used by the court to assist parents in developing a parenting plan that describes how they will work together to continue parenting their children. During mediation parents have complete decision-making power for their parenting plan. Attorneys for each parent may attend the mediation, unless requested not to by the parent. Additionally, the attorney will review any and all agreements before allowing their clients to sign mediated agreements.
The court expects each parent and attorney to act in good faith and to fully and honestly disclose all relevant information as requested by the mediator. One or both parties can request mediation of the court at any time during the divorce process.
The role of the attorney in mediation differs greatly from that of the attorney in litigation. In a mediation session, the attorney plays the role of counselor for his or her client. Instead of presenting an argument, the attorney is asked to allow the client to speak for him/herself and to be present to support and advise the client through the process. The mediation process is geared towards reaching a workable agreement for both parties.
The mediator functions as a neutral facilitator, and will not make decisions, will not give legal advice, or lead either party in anyone direction.
The mediator helps the clients to communicate with each other, so that they may hear each other's concerns.
The mediator aids the clients in identifying common issues and developing possible solutions to these issues.
The mediator then helps the clients work through the solutions to find those which are workable for both parties.
Each mediator has individual rules for taking breaks, holding separate sessions with clients, etc. The mediator will explain exactly how he/she conducts mediation sessions.
Mediation is private and confidential. What is said in mediation stays in mediation. Any offers of settlements or negotiation will be inadmissible to prove liability in court.
What is Mediation?
This video explains what Mediation is, its purpose, benefits and its differences from litigation...
How long does Mediation take?
Depending on the type and complexity of the dispute or lawsuit, mediation can take as little as one hour, or as long as multiple days...
How much does Mediation cost?
The cost of mediation depends mostly on your location, the type and complexity of the issues of your dispute/lawsuit, and the amount of time required to complete mediation...
Where does Mediation take place?
Mediation can take place at a variety of venues provided that the venue can guarantee privacy and safety, as well as other necessary services (Internet access, etc.)...
What's the difference between Mediation and going to court?
The differences between mediation and going to court (litigation) are vast and stark. Essentially, mediation gives the litigants the power over the outcome of their dispute/lawsuit, where litigation gives that power to either a judge or a jury...
Is the Mediator the same as a Judge?
The mediator and judge have only one thing in common... they're human beings. Beyond that, the main difference between a mediator and a judge is that the mediator won't be deciding the outcome of your dispute/lawsuit... a judge will...
Can my case be Mediated?
Most civil disputes/lawsuits (non-criminal) can be and are mediated. These same cases can be successfully mediated before a lawsuit is ever filed saving time, stress, and money...
What does the Mediator do?
The mediator has several responsibilities including maintaining a fair, balanced, flexible, and collaborative process. Equally important is what the mediator doesn't do... they don't make decisions about the outcome of a dispute/lawsuit and they don't make the litigants do anything they don't want to do...
Do I need an Attorney at Mediation?
If your dispute has escalated to a lawsuit, you should definitely have independent legal counsel to assist you in making the most informed decisions possible. Because your dispute is important, it's just as important to make sure you have great legal advice before signing any agreement...
Absolutely! Most attorneys will mention mediation to you as an option to going to trial and having a judge or jury decide the outcome of your dispute/lawsuit. If they don't, be sure to ask them about mediation and how you could benefit from it...
Can cases involving Domestic Violence be Mediated?
Disputes/lawsuits involving Domestic Violence or Abuse aren't confined to intimate partner relationships... they can involve many other important issues. Any issue that isn't related to the alleged DV event can be mediated, but the mediator must have specialized training in domestic violence issues for mediators...
Clay Phillips is a Tennessee Supreme Court Rule 31 Listed General Civil and Family Mediator, Specially Trained in Domestic Violence, and a Florida Supreme Court Certified Family, Circuit Civil and Appellate Mediator (#37581 FRA). He is also a Registered Mortgage Modification Mediator for the US Bankruptcy Court for the Northern District of Florida. Clay has been mediating since 2007 and has mediated several hundred pre- and post-filing disputes and lawsuits in Tennessee and Florida Courts.
Clay has experience mediating the following types of lawsuits and disputes:
Since 2008 he has trained more than 1,200 mediators for Rule 31 Listing. He earned a PhD in Organizational Leadership from Northcentral University, and a BS and MBA from Liberty University.
Clay Is an Honorably Discharged Veteran of the United States Navy. He spent six years (1984-1990) on active duty as an analyst/operator assigned to the Cryptologic Direct Support Element of the Naval Security Group.
Fees for Mediation are set by agreement.
For most mediations, my rate is $225 per hour, divided among the parties (in injury cases the injured party and their spouse count as one party).
There is no charge for travel time to the following Tennessee Counties: Davidson, Williamson, Rutherford, Wilson, Sumner, Robertson, Cheatham, or Dickson. Otherwise, travel fee is charged at a rate of $50 per County driven through/to each way. For travel requiring air travel, the fee is equal to the actual total cost incurred by me for air fare, car rental, parking and my fee rate for time spent traveling in-air and to/from airports. Lodging fee is equal to the actual total cost incurred by me.
A two hour cancellation fee will be charged for mediations cancelled less than 10 days before the date of the scheduled conference.
Expenses such as conference room rental and courier (FedEx, UPS, etc.) charges are billed at actual cost.
Clay Phillips Mediation & Training
is a Service Disabled Veteran Owned Small Business.