How do I start the Mediation process?
Mediation can feel overwhelming, especially if you do not have an attorney to guide you. This article provides an overview of how to start the mediation process by explaining how to decide if mediation is right for you, how to research mediators, how to choose the right mediator, and how to book a mediation session.
Deciding IF Mediation is Right for You
As a threshold matter to initiating mediation, you need to decide if mediation is right for you. Mediation is useful in a wide variety of circumstances, including informal disputes between neighbors and formal disputes that are being argued before a court as a part of the litigation process. In all of these circumstances mediation can be a wonderful tool to discuss the dispute with the other party and work out a solution together. There is no one ‘right’ way to resolve a dispute, so choosing mediation over litigation, or another method of conflict resolution will often depend on the personalities of the parties to the dispute.
If you are interested in finding creative solutions to your problem, repairing or maintaining a relationship with the other party, or want to avoid the court process, mediation is likely the best option for you. While you may be able to creatively resolve your dispute through a litigation settlement, legal requirements often restrain this creativity. Whereas, in mediation, you will interact with the other disputant in a less adversarial way, allowing for you to find common ground and focus on what is important to you. This non-adversarial setting also allows you to maintain or repair a relationship with the other disputant in a way that litigation does not. A mediator is present during mediation to facilitate a conversation, allowing you and the other party to understand each other better, while litigation values hard-line advocacy over understanding.
Mediation may not be the best option for you if you or the other disputant is looking to punish the other party rather than attempting to resolve the issue. Mediation requires the parties to discuss the issues in good faith in order to achieve a meaningful result. Another indication that mediation may not be the right path for you is fear of violence. If you fear that the other party may attempt to harm you, a court may offer more robust protections. However, a virtual-mediation may be enough to provide the safety you seek.
Mediation is a voluntary process so both you and the other party must agree to mediation to use mediation as a conflict resolution tool (not including court-ordered mediations). Remember, you can always change your mind about wanting to pursue mediation throughout the process.
Researching Mediators
Once you have decided that mediation is the best option for your dispute, it is time to start researching mediators. If you have an attorney, your attorney has likely worked with mediators before and can help you decide which mediator to choose. But if you are unrepresented, or your attorney is unfamiliar with mediators in your area, you can start identifying mediators by asking friends and family, googling mediators in your area, or reviewing websites for professional associations of mediators. Spotted Owl Mediation, LLC suggests starting with the Texas Mediators Credentialing Association (TMCA) to find a qualified mediator. Mediators listed in the TMCA’s directory all meet certain training requirements and continuing education requirements, while also adhering to ethical guidelines and opting-in to a grievance process. Additionally, the Texas Association of Mediators maintains a directory of mediators in Texas. If you want to attend an in-person mediation session, or just want to work with someone local, you can search for regional or city specific mediator directories, like the Austin Mediators Association’s directory.
If money presents an issue to access mediation, consider reaching out to one of the Dispute Resolution Centers in Texas that provide free and/or reduced cost mediation services. Mediators in private practice may also provide pro bono mediation services to clients with limited income.
Choosing the Right Mediator
You have a lot of options when it comes to mediation in Texas. And like finding a physician or therapist, it is important to find a mediator who is a good match for the parties and their dispute. To find a good match, start by identifying your goals for mediation and your needs. Many mediators specialize in a specific practice area, such as family conflict, personal injury, neighbor conflict, or commercial disputes. Make sure that your prospective mediator(s) handle the type of dispute to which you are a party. You may also want to consider the mediator’s professional background. A mediator that has practiced as an attorney may have a thorough understanding of the legal aspects of your case and be able to assist you in imagining how a judge or jury might view your case. A mediator that has practiced as a therapist may be able to pick up on subtle emotions during the mediation session and be especially adept at managing high-conflict disputes. Consider how your prospective mediator(s)’s background may affect the mediation and suit your needs.
After this first step, you can start to think more specifically about the details of the mediation process. Do you want to attend a mediation session virtually or in-person? Do you need the mediation to start or end at a certain time so that you can get to work on time? Do you need a physical accommodation to participate in the mediation session? Would you feel more comfortable participating in the mediation-session in a language other than English? How much can you afford to spend on mediation? Determine what mediation session attributes are necessary for you to have a successful mediation session, and then search your prospective mediator(s)’s website to determine if they provide these services. Most websites will make clear whether the mediator practices virtually and/or in-person, and if the mediator is bilingual. Other important factors, like price or mediation start times may not be clear from the website. In that case, reach out to the mediator through their contact form or phone number if you are interested in their services, but still need more information.
Many mediators also offer a consultation for you to ask questions about their mediation practice and to get to know them. Consultations are often free and are a great way to learn more about the mediator and judge if you, the mediator and the other party to the dispute are a good fit. You may be required to bring your co-disputant to the consultation so that the mediator can meet both of you. Remember, mediation takes two, so even if you love the mediator that you have found, that mediator may not be the best fit for all parties involved. Creating a shortlist of mediators from which you and your co-disputant can choose from is a good way to narrow down your options and choose a mediator that works for both parties.
Booking a Mediation Session
Now to the fun part—you are almost ready for mediation! Once you have decided on the right mediator, it is time to book your mediation session. Each mediator does this a little differently, so if you book a consultation, make sure to ask about the mediator’s booking process. You may be able to book your mediation session directly from the mediator’s website, but you may need to book a consultation to contact the mediator first before you can book your session. When you book your mediation session, ensure that you will have the time and space to participate in a mediation during that day. Many mediators set up their mediation session by blocks of time (3hr/6hr/8hr etc.), so check before booking to make sure you are free for that entire period of time and do not have a conflicting appointment immediately before/after the mediation session. The end of a mediation session will only feel stressful if you have to pick your kids up in 10 minutes after the agreed endpoint. If you have specific scheduling needs, discuss those with your mediator before booking a session. And, of course, remember that the mediation session timing will need to work for your co-disputant as well. If you cannot reach an agreement about scheduling with your co-disputant, reach out to the mediator to determine scheduling. If you can agree to the time and date of the mediation session with the other party, great—book it!