Role of the Mediator : Neutral Facilitation in Safe Confidential Setting
The duty of your mediator is to provide structure as the impartial convenor. Beyond that, the role of mediator includes assistance in establishing boundaries, provide active listening training and skills, reality testing, moderate/facilitate facts and feelings, assist in assessing the nature, source/or cause of the conflict, analyse and clarify issues and options, reframe concerns, keep confidences, generating and evaluating alternatives, assist the parties in gaining closure, and reserve judgment or decision-making.
Mediators do not give legal advice and cannot act as your lawyer in this or any action or purpose unless all parties waive the appearance, real or perceived of conflict. If you have a legal or expert issue (e.g., tax advice, accounting questions, probate questions, child/spousal or support regulations) that needs answering, the mediator will usually refer you to your own lawyer for advice or referral to another professional. In that case, related decisions will be postponed until you get the answers you need to move forward in making a decision. A dynamic list of resources is provided on this website to help with understanding legal issues that parties commonly face.
Role of the Parties
Most importantly the participants are expected to express their concerns, engage, listen curiously and ideally without judgment. The mediator will model listening skills, which includes acknowledging what was said. Everyone will be given an opportunity to be heard. You can take down a note to remind yourself of something you want to bring up but try not to get to involved in notetaking as it tends to distract from hearing what is being said. General rules of courtesy apply, including being respectful, not interrupting when others are speaking, avoid name calling or blaming, attending every session and arrive on time.
Generally, come with the mindset to build or maintain trust and faith in the process, suspend judgment, support a positive momentum toward goals, notice your own issues that may impede the process, and express your concerns, interests, and goals genuinely. Above all try to be patient and allow the process to work.
The process of reaching an agreement is confidential and cannot be used against either party for any purpose as a matter of law. Neither the parties or your mediator can be asked to testify as to the content or discussion of your mediation process. It is important that the parties not share what was discussed in mediation (content) outside the room with anyone (other than their attorneys if they have them, or other experts such as accountants or tax consultants) so that each person will feel safe to discuss whatever is necessary in order to genuinely explore options. We may agree they not talk to each other about the substantive matters or comment about content during the mediation process between sessions.
In this way, we strive to keep the process safe and productive. Mediation is hard work if done correctly, much of which is spent in self-exploration and developing a deeper understanding of the self during a difficult time. It is seldom productive to worry that what you say may be brought up or quarreled over at breakfast, or in a meeting, or in front of family members!
There are exceptions to the confidentiality rule. If the mediator learns that a child or elder person is being physically abused, emotionally or financially abused, or if any person is in imminent danger of being harmed, the professional (e.g., lawyer, physician, psychologist, marriage and family therapist, licenced clinical social workers, etc.) mediator is mandated to immediately report the information to law enforcement and/or a person, state or county agency for action. Depending on the nature of the revelation and evidence of imminent harm, the mediator may discuss the decision to report with you before doing so. Also, in the final step in your mediation may result in a written agreement, which is not confidential after it is signed by all the parties.
If you filed a case or petition with the court you will need an agreement to resolve the case, short of dismissing it. The settlement agreement itself is not confidential because it is limited to decisions that the parties agreed to, not how they arrived at their decisions. If signed by the parties it is typically submitted to a judge for an order that approves your agreement and makes it immediately enforceable. Trained mediators are qualified to put the decisions you made into writing for your signatures.