What to Expect from Mediation with John Tweedy
Although the Courts require mediation as a step in the process of bringing your case to trial, mediation itself is a voluntary, problem-solving process. The reason the courts order mediation is that you are the expert on your own life, knowing more about the dispute than a judge will ever know. The information you bring to the mediation process gives you the power to craft a solution that may be better than anything a court might decide.
But if it were so easy to use information to arrive at solutions, we would not need courts to begin with! In the real world, people are in serious conflict over what is “true”. They are wracked with emotions, wounds, and scar tissue over what has happened in the past. They have very differing perspectives on how to move forward. Power dynamics between them can result in very unequal bargaining positions. And some may be worried about their physical and emotional safety in the mediation itself. These realities of human conflict make it very hard for the parties to access fully the information they have, and so their dispute escalates into litigation. Mediation addresses this problem by creating an environment where the information is available, emotions are managed productively, bargaining power is equalized, and parties feel safe to express themselves freely and openly.
As mediator, I begin by listening closely to you in a separate, safe environment. You are free to share the information most important to helping me understand why you came to the mediation. This sharing of information is completely confidential. I ask each mediation participant how much of what they have told me I can share with the other side. The answer can be all, some, or none. Furthermore, the entire process is confidential and protected from anyone outside of it, and nothing you say or hear can be used later on in court. So you don’t have to worry about “saying the wrong thing.”
After each party shares his/her perspective, I offer suggestion and ideas for potential solutions to the problem. Many of these you may have already thought of; but perhaps you discarded the idea because of a belief that it would be unacceptable to the other party. In mediation, assumptions can be tested, ideas explored, and concepts shaped into proposals for consideration by both sides. This process can take place in a joint session of the parties – or, if safety concerns or emotional levels are too high, I can continue to meet with the parties separately.
The final stage of the mediation involves bargaining over particular aspects of the proposal under consideration. Often, mediation participants can agree on an overall framework but disagree on details, often involving money, time with children, or other factors. At this stage, it is often helpful to think about the risks associated with both parties’ positions if the case were to proceed to trial. As a litigator for many years, I can offer my perspective on these risks. In this way, you can zero in on the key issues that are preventing settlement, assess the risks and values involved, and make an informed decision on whether to settle the case.
As mediator, I do not consider it my job to pressure or cajole you into settling the case. Indeed, it is important for the parties to understand that they have equal power to walk away from the process at any time. Though I have tried many cases, I do not presume to have a crystal-ball knowledge of what a judge will do. Nor do I know what is ultimately best for the participants. It is my job, however, to develop one or more alternatives, in order to give you a choice as to how to move forward. You have a right to go to trial; and in mediation, you have the option of reaching a voluntary solution. Often, mediation participants face a range of choices, all of which, unfortunately, may be bad ones. Your job is to consider which is the “least bad” option – one with which you must live for the long term. Only you can make that decision. For that reason, I consider you – and the other participants – to be master of the process.
I receive referrals through the Colorado Office of Dispute Resolution (ODR), and I also schedule mediations privately. More information about these two means of scheduling mediations, and the costs associated with each, is found on the "ODR Mediation" and "Private Mediation" pages of this website.
Attorneys often serve as an important resource during the mediation by assisting clients to identify and assess options, and determine if proposed options are in the client’s best interest. However, attorneys are not required to attend. You may consult with an attorney before the mediation to review the disputed issues and obtain legal advice. You will have an opportunity to review any agreement made in mediation with your attorney before it is finalized.
As part of the mediation you will need to:
Where the parties are able to resolve the issues in mediation, the mediator can prepare a Memorandum of Understanding or the attorneys (if applicable) can draft the agreement.
If you have further questions in advance of the session, please call my office at (303) 474-4735. I look forward to working with you!