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Mediator and InstantMediations.com Advisor Fran Brochstein, whose mediation experience spans decades, provides mediation tips to mediators and parties engaged in dispute resolution. She is based in Marble Falls, Texas and can mediate online with parties from anywhere. Contact her through her site Familylaw4u.com at Fran@Familylaw4u.com. If you have any suggestions for future columns, please feel free to contact Fran.

The recent Texas freezing weather and electrical outages gave me the opportunity the re-read some books.  Edward De Bono’s book – Six Thinking Hats, was one of those books. In it, the author encourages the reader to use the concept of “6 hats” when making decisions and exploring new ideas.

Mr. De Bono breaks down decision-making by having the decision maker look at each situation from a different perspective. He takes complex decision-making and breaks it down into smaller pieces so that people can think more simply and make the decision-making process more enjoyable and effective.

You can try a version of his “6 hats” idea when doing your next mediation, or use it on your children the next time they must make a major decision:

1. White hat – Looks at just facts, figures and information gathering. It is neutral and objective. It is the first point of view to consider because it addresses what you know and what you don’t know. It considers what additional information you need to make a final decision.

2. Red hat – Looks at each person’s emotions, ego, feelings and fears. Using this point of view, intuition and hunches are considered.

3. Black hat – Looks at the situation as the “devil’s advocate”. Each negative outcome is considered. A person’s worst-case scenario is discussed. This point of view is cautious and careful.

4. Yellow hat – Looks at the situation in the best and positive light. Considers all the good things that could occur. It is the optimistic point of view.

5. Green hat – Looks at the situation through new ideas and creative solutions. It is the creative point of view. It considers all possible alternatives that might exist.  

6. Blue hat – Looks at the situation through an overview point of view by considering all the items brought out above. The point of view is usually the person in control of the overall process – in our example, it would be the mediator’s role. At the end of all discussion, this point of view asks for the outcome on how to proceed in the future – it focuses on the big picture while taking into account all the other 5 views listed above.

Decision-making between mediation parties is a big topic. As a mediator, you should get your hands on as many resources as possible to develop your skills on helping mediation participants analyze their options and process their choices in the clearest ways possible. Mr. De Bono’s book provides one framework for helping get parties to think through a decision from different perspective in ways they would not have considered.

I hope sharing this book was informative. If you have other resources that you’ve read that goes deep into the psychology of decision-making, please share it. Lots of information is available on the internet and on YouTube.

We are getting feedback on the Instant Mediations App, now downloadable on iOS and Android from the AppStore and Google Play Store. To address the questions we’ve received, we find it worthwhile to share in blog form answers to frequently asked questions, and to provide  tips on using the App and explain its main functions. Part of the reason for educating about the App is because the whole concept of a “mediation app” is new. Some queries we’ve received from mediators focus on the concept of why such a tool exists, who the target audience is, and how they might benefit from using the App. If something has never existed before, or existed in a different format (ex. ODR software), then there will be questions and a need to explain and clarify.  

What the Instant Mediations App is NOT

First, to bring some clarity, what is the App NOT? It is not another expensive and closed dispute resolution platform for mediators to adopt and learn, and train to their parties. That model has been attempted for years, but has never truly taken off on a large scale. The covid-induced pandemic has re-ignited the race to market ODR software to mediators, but the approach continues to be the same: rigid one-size-fits-all video-conferencing platforms promising to help mediators handle tasks like scheduling, collaboration, invoicing, and e-signing. 

But mediators remain a diverse group, from many different jurisdictions, who prefer to use the online tools they already pay for. With the plethora of tools available on the market, another “Zoom” for online mediation may not be as important to the online mediator as a platform that helps bring order to the tools they already use and integrate them in a way that makes sense. Thus, the commodity of knowledge, in addition to tech, is a key ingredient that has been missing from past solutions in this space. The App addresses this.

What the App is Intended to be

The Instant Mediations App is meant to be:

  • A bridge that connects mediators and parties, and serves as a neutral starting point for their common online mediation experience;
  • A hub that seeks to aggregate the web-based tools most mediators already pay for and use to run their online mediation practices, and a system that promotes the interoperable use of those web-tools to create unique and customized e-mediation solutions;
  • An extension of the InstantMediations site that meets the 5 core needs of online mediator entrepreneurs (get found, get booked, get paid, get mediating, get e-signatures), plus the 2 needs of any growing professional (get trained and get networked); 
  • A tool that brings legitimacy to the online mediation process on a broad scale, together with informative content and training that promote quality online mediations; 
  • Free to access basic content regardless of income-level to promote access to justice and lessen the digital divide.
  • International in scope to expand the online mediator community and to promote the use of cross-border mediations to resolve disputes, especially among multicultural and multilingual parties.

Responses to Initial Questions About Key Features in the App (Version 1.1.1)

Language

What is the language used in the App? The App is starting off in English (American). We wish to perfect its functionality in English before progressing to add additional languages, such as Spanish (Mexican) (coming soon). Additional languages will grow based on usage and feedback by mediators and participants. Note that the created Jurisdictions allow online mediators to converse in a specific language common in that jurisdiction. For example, German-speaking online mediators may prefer to dialogue in German and English in their German Jurisdiction group on the App. Argentinian mediators may prefer to connect with others in their Spanish.

Jurisdictions

What is the purpose of the Jurisdiction groups? We set up special groups for online mediators called Jurisdictions. We have discovered that any large global group, such as the Online Mediators Facebook Group,  will suffer from a lack of participation by members when topics are so broad and universal, members do not get the practical knowledge they need to actually help their practice. Conversely, tuning in to topics so narrow to one jurisdiction, may be futile when the information cannot be applied to the matters in a different jurisdiction. For example, how does sharing a specific Florida mediation article in a global group necessarily help the online mediator in Nigeria do their best work? We’ve therefore developed Jurisdiction groups to fulfill 3 functions:

1. Promote collaboration among a smaller group of geographically local online mediators; 

2. Establish brain-trusts of knowledge and information focused on the nuances and complexities common to mediation in specific localities;

3. Provide outsiders (non-jurisdiction members) with mediation referral groups at the state or country level, especially when language is an issue for participants.

More jurisdictions will continue to be added over time. Check back to see if your locality has made the list. If you wish to contribute toward leading the creation of your Jurisdiction, just connect with us at team@instantmediations.com.

Registration

Do I need to register for this App? To get the most use of the App you should register with your name and email address to create a free members account (note: you must be a mediator in good standing in your credentialing jurisdiction to register). Upon registering, you will receive a confirmation email, which will let you join jurisdictions, enroll in certain courses, and participate in the community. You may use your login details for both the InstantMediations App or website. You may opt to create your free Mediator Profile Page for the public and submit it for approval, but that is not necessary to participate as an online mediator member. 

Zoom

Does the App have Zoom built in? We intentionally choose not to integrate Zoom’s API into the App. The main reasons for this are that most online mediators already have the Zoom App on their devices, and most will utilize their computers for online mediation anyway, not their mobile phone or tablet. Another reason we opted not to build in Zoom is because we aim to remain platform-agnostic in order to help as many mediators and participants get online instantly no matter what platform they use. While the App (and website) right now is heavily centered around Zoom, over time we plan to publish more content that cater to Microsoft Teams, Cisco WebEx, and other platforms common to online mediators. Because Zoom is arguably the most popular platform online mediators utilize today, and because it’s wildly popular among mediation participants who require virtually no training, the Zoom Start Mediation button remains prominent on the site, along with public access to the instantmediations.zoom.us launch page. So whether a person uses their free 40-minute Zoom to conduct quick meetings or paid unlimited Zoom to conduct mediations, the App is for them. Whether they choose to use a different video-conference platform entirely, the App is still for them. 

Audience

Who is this App geared towards? The app contains two zones – one for the Mediation Participants and the other for online mediators. While only Mediators are invited to log into the App and collaborate and train, mediation participants will find some useful resources there like the Technology Guide, General Guide, and the Guide For Family Law Mediations. These guides will grow over time for the benefit of new and returning online mediation participants. We want online mediators to direct their participants to this one concise set of guides containing all the valuable information participants need to prepare for and attend their quality mediations. 

Download today, have a look, try it out, and message us with your thoughts. 

Mediator and InstantMediations.com Advisor Fran Brochstein, whose mediation experience spans decades, provides mediation tips to mediators and parties engaged in dispute resolution. She is based in Marble Falls, Texas and can mediate online with parties from anywhere. Contact her through her site Familylaw4u.com at Fran@Familylaw4u.com. If you have any suggestions for future columns, please feel free to contact Fran.

“You can’t always get what you want, but if you try sometimes, you might find, you get what you need”.

Mick Jagger

This song lyric reminds me of the importance of encouraging people to negotiate at mediation.  Mediators need to encourage the parties to think outside the box and come up with creative solutions to their ongoing disputes. 

Over the years, I’ve developed the habit of asking parties, “Can you live with the agreements we have reached today?” I never ask parties if they are happy with the results. Generally, in family mediation neither party is “happy” with the outcome.  I like to remind people that stoning or flogging the other party into agreement is not allowed under our laws. 

At the beginning of my mediations, I usually let parties know that if they both hate me at the end of the mediation, then I did a good job. I also warn parties that mediation is exhausting and difficult since we discuss all the items that the parties could not agree to prior to mediation. I tell both parties that I will not force anyone to settle a dispute. I like to warn parties that I don’t have any magic fairy dust to make the other person be reasonable. 

Sometimes when negotiating at mediation, a party expresses their fears and concerns. I often let people know that they can express their fears to me at mediation, but in court the judge will just want to hear the facts. I find that by exploring and discussing their fears, mediation parties gradually begin to think clearer and begin to consider other possible options. 

At the end of the mediation process, whether we reached settlement or not, I thank the parties for participating. If an impasse was reached, I encourage the parties to continue to negotiate and try to continue finding ways to avoid “going to the judge.”

Over the years, I have found that many cases settle a few days after the mediation ends. People go home, think about their disputes, talk to someone they trust and/or decide that they just want their case over. The negotiations continue into their private time.

At the beginning of my mediations I assure both parties, “I  don’t have a horse in this race,” or “a dog in this hunt.” I like to mention I am a trained professional who has mediated for many years, and that my role is to be an impartial facilitator of their discussion.  I assure them that THEY are the decision makers, and that after an impasse it is usually a judge who will make all decisions. Since it’s family law, to connect with parties, I also point out that I’m on my 3rd marriage and I now co-grandparent with my ex. My elevator speech has become, “people come to me in knots and I untangle them.” I’m now considering changing it to, “I’m old & I know things.” 

With February being the month of love,  I wish everyone who reads this column a wonderful, fun, joyful Valentines. Appreciate and embrace all the positive things in your life. Don’t forget to give your loved ones a big hug – in person or virtual.

Mediator and InstantMediations.com Advisor Fran Brochstein, whose mediation experience spans decades, provides mediation tips to mediators and parties engaged in dispute resolution. She is based in Marble Falls, Texas and can mediate online with parties from anywhere. Contact her through her site Familylaw4u.com at Fran@Familylaw4u.com. If you have any suggestions for future columns, please feel free to contact Fran.

What it used to be like before the pandemic and how I got on the right track.

What a difference a year makes. A year ago I had never used Zoom. Then Mac-Arthur Pierre-Louis called me about InstantMediations and Zoom. I had never really considered Zoom until his call. He showed true patience in training me to use Zoom to mediate. And truthfully it was scary at first.

I had to give up some of my good practices I had developed when mediating in person. For example, while in person, I would allow third parties to stay in the room if I felt they were the decision maker or could help me negotiate. I know there are many mediators who do not share my view on third parties, but I’ve found third parties can make or break a mediation. Also, when mediating in person there were times in a case when the attorneys would meet in the kitchen or hallway and begin to hammer out a settlement, or I would bump into an attorney in the hallway and we would chat informally about the issues. Finally, mediating in person allowed parties to come to my office and stand on neutral territory. And meeting in my office allowed everyone to be fed with snacks, which encouraged them to relax. All these things cannot be done so easily via Zoom mediations, or else I’ve had to think up “virtual” solutions to compensate. For the most part though, it has worked out. Zoom mediations are not absolutely good or absolutely bad when compared to in-person mediations; they are just different.

The beginnings were not easy.

It was all so scary at the beginning! Yet I convinced some girlfriends of mine to practice online mediation with me. Those initial Zoom practice meetings were frustratingly funny in hindsight.

I went through the “technical glitches” with Zoom as I learned the platform. Overall Zoom works pretty good. And I’ve learned lots of tricks to make the Zoom mediation run more effectively. For example, I find myself mouthing, “unmute,” or lifting my hand to my ear to get someone to unmute themselves. Who would have ever imagined that such motions would be part of 21st century mediation practice.  I’m still struggling a bit with quickly getting mediated settlement agreement signed, but I have made progress in this area too. Lastly, I recall the internet connection issues I experienced when trying to get online. I eventually hard-wired my computer to my internet modem, and I even upgraded my internet speed.

How it is now and the benefits of Zoom.

Now I use Zoom regularly. I believe that Zoom will continue to be used even after the current health crisis is over. I know that some family law attorneys really like Zoom because they don’t have to travel up to an hour to and from the mediator’s office. I have also heard that attorneys hope uncontested hearings or finalizing uncontested cases can continue via Zoom. In Houston, when I had to appear in court as an attorney, I often spent 2 hours or more driving to the courthouse, parking, going through metal detectors, waiting on an elevator, and then waiting to approach the bench for a simple 3-minute hearing. Now all of that can be done from the office or home.

I like Zoom because it has reduced my overhead. I have no office rent and do not have to provide snacks and drinks to participants. I can wear a nice top, but do not need to spend a small fortune to beautify the rest of me.

Another advantage of Zoom mediations is that if the parties request it I can break up my usual 4 hour mediation sessions into shorter sessions. I try to avoid mediating over 6 hours because of mediation fatigue. I don’t want people to just be so worn out that they will agree to settle just to escape from the mediation. Note: I have done several mediations in person that went up to 12 hours, but everyone wanted to continue. I’ve discovered most cases longer than 8 hours usually settle.

On the negative side, I do find that Zoom mediations can be somewhat tiring on my part and I don’t always feel like the participants are fully engaged. I have trouble reading their subtle body language. And oftentimes, attorneys sometimes are still in litigation mode and not settlement mode. And occasionally there is the problem of third parties lurking off screen listening in to the conversation.

What the future may bring.

I have heard from several family law attorneys in Texas that their divorce business is booming. I guess that when people had to stay home with their family members and were not able to continue with normal routines, that it increased the stress in their relationships. I have heard on the news that domestic violence has been higher since everyone has had to stay home.

I do hope lots of it can be solved using online mediation.

I know that we are all looking forward to going back to “normal.” I’m not sure how that will actually look in 2021, but I feel confident that Zoom is here to stay.

Happy New Year and may all these video-conferencing tools like Zoom continue to help us for good to do good.

Mediator Mac Pierre-Louis, provides this insight into the mediation practices of Texas. The opinions expressed are his own, and does not constitute legal advice. Mac is based in Houston, Texas and can mediate online with parties from anywhere. He can be reached at Oplawyers.org.

General Overview of Mediations in Texas

Texas mediations involve mediators helping parties resolve disputed claims in many various areas of areas. Whether the issues deal with family, probate, insurance, or personal injury, or it’s related to basic civils cases involving contracts or real property, Texas mediators help resolve an infinite variety of suits outside of court, saving parties time, money, and the inconveniences typically found in litigation.

Court-Appointed Mediators

Local Texas courts sometimes appoint mediators to help parties resolve disputes before those disputes are tried by the judge or jury. These “referral” cases are assigned to mediators who the courts know have a desire to receive mediation appointments. Downsides to the parties being assigned to a particular mediator by a judge might be the parties’ lack of control over who the mediator is and how much the mediator might cost. While many assigned mediators serve at the behest of a Judge, most of them still operate their own mediation practices where they work with voluntary participants by contract.

Low-Cost Mediations

Several low-cost or pro bono mediation organizations exist in Texas. Some are not-for-profit organizations, and some are organized by local government agencies. They typically have staff and/or volunteer mediators available to serve parties and attorneys with private matters or issues in local courts. Oftentimes, many local courts will order cases to such organizations, especially lower-cost disputes, non-urgent disputes, or disputes that have high changes of settlement. While cost might be an upside to attending a low-cost or pro bono mediation clinic, there may be downsides related to urgent scheduling and personal attention.

Time & Money

While mediations may take on different formats across the state, in Houston, Texas’s largest city, it is not atypical to see mediators meet with parties and their lawyers in group/joint and caucus-style mediations lasting 4-hours at a time, a period commonly referred to as “half-day mediation.” For full-day mediations, a duration of 8-hours is common for more lengthy and detailed discussions. Long mediations may involve the mediator providing a short lunch and involve several breaks.

Typically, if done as a flat-fee, mediations might range from as low as $200.00 per party to over $1000.00 per party, depending on the subject matter, the qualifications, and experience of the mediator, and the length of time needed give the parties’ case the attention it deserves. For hourly mediations, the author has seen mediators charge from $100.00 to $500.00 per party per hour.

Online Mediations in Texas

a. Online mediation is a growing trend in Texas. Like other jurisdictions around the world, prior to the start of the 2020 pandemic most mediators handled their mediations in their offices, or visited the office of one of the parties’ lawyers, or they would meet at a local mediation center that offers mediators workspace. Many mediators are successfully mediating through internet video, with Zoom being the predominant tool of choice. With lockdowns continuing to limit face-to-face meetings, online mediation has become greatly beneficial to many Texas mediators and their parties.

There are currently no court or statutory restrictions against mediating online. In fact, with the state courts, including the State Supreme Court, promoting the use of remote court appearance, such as via Zoom, many mediators realize remote appearance via Zoom for out-of-court negotiations also makes a lot of sense. Whether use of video-based mediations will decrease when the pandemic ends is to be seen. But the technology that is beginning to grow around online dispute resolution due to the pandemic seems to suggest that despite an end to the lockdowns, most mediators and their parties will still seek out the conveniences brought on by online mediations.

La Mediadora Mariana Tarzia, proporciona una mirada amplia sobre la práctica de la mediación en Argentina. Las opiniones expresadas en este artículo son propias. Mariana reside en Río Negro, y está habilitada para mediar en línea (online) con partes provenientes de cualquier lugar. Mariana puede ser contactada a través de www.gruponegociar.com.ar

Descripción de las Mediaciones en Argentina

Cuáles son los tipos comunes de Mediaciones y quienes son comúnmente las partes?

En la República Argentina existe una ley de mediación nacional, así como leyes de mediación provincial, lo que significa que cada provincia tiene su propia ley de mediación.

Los tipos más comunes de mediación son la Mediación Pública (como la prejudicial obligatoria, la voluntaria), la Mediación Privada y la Mediación Extrajudicial.

En las mediaciones participan: el mediador (quien conduce el proceso), la persona que reclama (requirente), la persona convocada por el reclamante (requerido) y los abogados de cada parte (no es obligatoria la presencia de los abogados o de la Defensoría Pública durante toda la mediación, pero si es obligatoria la asistencia letrada para prestar asesoramiento técnico jurídico a las partes previo al inicio de la reunión y al momento de arribarse al acuerdo). 

En el caso de las personas jurídicas, estas pueden estar representadas por apoderados.

Durante el proceso de mediación, y con el acuerdo de todas las partes, se puede solicitar la presencia de peritos o profesionales especializados cuando sea necesario.

Cuáles son los formatos y procedimientos más comunes, qué duración tienen las sesiones, y quiénes suelen asistir?

La mediación, ante todo, es un procedimiento voluntario, tanto en el ámbito prejudicial como privado. En el caso específico de la Mediación prejudicial, es obligatorio asistir a la primera reunión, pero es voluntario quedarse y participar del proceso.

Generalmente, se recibe a las partes en la oficina del mediador o en una oficina perteneciente al Centro de Mediación Judicial, en una sala. De llevarse a cabo la mediación de manera virtual, el mediador y las partes deben encontrarse en un ambiente tranquilo, sin ruidos y ajeno a terceras personas.

En la primera reunión el mediador informa a las partes sobre los principios que rigen el procedimiento y como se llevará a cabo la mediación, luego se comienza a trabajar el conflicto, siempre respetando el principio de autocomposición de las partes.

El mediador puede convocar a las partes a todas las sesiones que considere necesarias. Estas reuniones, en general, duran entre dos y cuatro horas.

Cuáles son los costos generales y quién paga?

En la Mediación Prejudicial los costos son abonados por el Poder Judicial de cada provincia. Cada provincia organiza el financiamiento según la ley que regula su sistema. No hay un costo uniforme para todo el país.

Algunas provincias tienen mediadores que trabajan en carácter dependiente del poder judicial, y otras provincias contratan mediadores externos matriculados ante el poder judicial, que trabajan en forma independiente.

En el caso de las mediaciones privadas, el costo de los honorarios los decide el Mediador y son abonados por el requerido y el requirente.

Mediaciones virtuales (online)

Son legales las mediaciones virtuales? Si es así, existen limitaciones?

Las mediaciones virtuales son legales en la Argentina, están encuadradas dentro del marco jurídico. 

Las mediaciones virtuales son conocidas y aceptadas por los profesionales y las partes? De ser así, qué plataformas se utilizan?

Las mediaciones virtuales son relativamente algo nuevo en la Argentina, y es algo que se intenta promocionar dadas las circunstancias relacionadas a la pandemia originada por el COVID-19. En general, son bien aceptadas tanto por los profesionales como por las partes.
Para llevar a cabo este tipo de mediaciones, generalmente se utilizan plataformas como Zoom, Google Meet, Samba, video llamada de Whatsapp, etc.

Mediaciones dentro del sistema judicial

Quién puede mediar? Lo pueden hacer mediadores fuera de tu jurisdicción?

El mediador debe ser un profesional idóneo que posea título universitario, debe tener el certificado correspondiente a la capacitación básica en mediación obtenido en uno de los centros habilitantes, homologado por el Ministerio de Justicia y Derechos Humanos de la Argentina, y otros requisitos propuestos por la ley. En el caso de las Mediaciones Prejudiciales, los mediadores deben estar matriculados ante el Poder Judicial de la provincia en la cual ejercen la profesión. 

En algunas provincias argentinas solo se permite ser mediadores a los profesionales que son abogados, en otras provincias se permite ser mediador a profesionales de otras disciplinas, lo cual trae mayor flexibilidad y otras visiones al campo de la mediación. Los mediadores deben cumplir con ciertos requisitos establecidos en la reglamentación de cada provincia.

Se pueden realizar co-mediaciones con otras provincias y otros países. Estas mediaciones se llevan a cabo de manera virtual. 

Qué le da autoridad a los acuerdos de mediación? Son vinculantes, ejecutables?

Cuando se llega a un acuerdo en la mediación prejudicial obligatoria, se realiza un acta y esta debe ser firmada por el mediador, las partes, los terceros si los hubiere, los letrados intervinientes (abogados), y los profesionales asistentes de haber intervenido, además de llevar el visado del Centro Judicial de Mediación. El acuerdo al que arriben las partes no requiere homologación judicial, constituyendo este acta título ejecutivo suficiente a los fines de su ejecución en caso de incumplimiento, salvo que el mediador tome conocimiento de hechos de violencia que no han sido denunciados previamente o intervenidos por organismos protectorios.      Si en el procedimiento de mediación hay involucrados intereses de niños/as, adolescentes e incapaces, el acuerdo deberá ser sometido a la homologación judicial del juez competente. Los secretarios de los órganos judiciales certifican el cumplimiento de la instancia de la mediación. Los acuerdos de mediación son vinculantes y ejecutables.
Los acuerdos firmados en la mediación privada revisten el carácter de contrato privado y deben ser visados por el Centro de Mediación Judicial o una Delegación.

Cómo participan los tribunales en las mediaciones?

El juez puede derivar a las partes a mediación cuando lo considere pertinente, en cualquier estado del proceso judicial, si la naturaleza y el estado del conflicto lo justifican. Asimismo, en tribunales se homologan los acuerdos.

Qué tipos de casos son mediables? Hay casos en los que no se puede aplicar la mediación?
En la ley de mediación 26.589, se establece expresamente los casos en los que no se puede aplicar la mediación. De acuerdo a la misma ley, el procedimiento de mediación prejudicial obligatoria no será aplicable en los siguientes casos:
– Causas en las que esté comprometido el orden público.
– Acciones penales.
– Acciones de separación personal y divorcio, nulidad de matrimonio, filiación, patria potestad y adopción, con excepción de las cuestiones patrimoniales derivadas de éstas. El juez deberá dividir los procesos, derivando la parte patrimonial al mediador.
– Cuestiones en las que el Estado nacional, el sector público provincial o municipal sea parte, o salvo en el caso que medie autorización expresa y no se trate de ninguno de los supuestos a que se refiere el art. 841 del Código Civil.
– Procesos de inhabilitación, de declaración de incapacidad y de rehabilitación
– Amparos, hábeas corpus, hábeas data e interdictos.
– Medidas cautelares de cualquier índole.
– Diligencias preliminares y prueba anticipada.
– Juicios sucesorios.
– Procesos de concursos y quiebras.
– Convocatoria a asamblea de copropietarios prevista por el art. 10 de la ley 13.512
– Conflictos de competencia de la justicia del trabajo.
– Procesos voluntarios.
– Las cuestiones de violencia en el ámbito familiar.
– Multas y sanciones conminatorias.

Normas locales

Existen reglas/normas especiales en el caso que las partes no se presenten a la mediación?

Si una de las partes no asiste a la primera reunión con causa justificada, el mediador fijará una nueva reunión. Si la inasistencia de la parte requerida fuera injustificada, la parte requirente podrá optar por concluir el procedimiento de la mediación o convocar a una nueva reunión. Si la parte requirente no se presenta a la mediación y su inasistencia es injustificada, deberá reiniciar el procedimiento de mediación prejudicial obligatoria.

En el caso que el requerido no asista a la mediación y su inasistencia sea injustificada, el requirente quedará habilitado para iniciar el proceso judicial.

Hay reglas/normas especiales cuando la mediación tiene lugar dentro de los procedimientos judiciales y cuando son prejudiciales o privadas fuera del tribunal?

Tanto las mediaciones prejudiciales como las privadas están regidas por la norma nacional y la ley de mediación provincial.

Cuáles son algunas de las principales preocupaciones éticas entre los mediadores, abogados y jueces?

Siempre se pone énfasis en que las partes entiendan el proceso de mediación y que todos los principios de esta sean respetados y cumplidos por todos los intervinientes. Un mediador no debe tomar un caso para el cual no está preparado o que puede conllevar a un conflicto de intereses. Se espera que los mediadores, abogados y jueces se rigan por altos estándares éticos en el cumplimiento de sus funciones.

Evolución y tendencias

Cómo evolucionó la mediación, específicamente la mediación virtual, en estos últimos años?

La mediación virtual es relativamente nueva en el país, en un principio se utilizaba en los casos en los que la distancia territorial entre las partes presentaba un impedimento para reunir a las partes, o bajo la existencia de incapacidad para movilizarse. Luego se profundizó y popularizó su uso con motivo de la pandemia provocada por el COVID-19. Se intenta dar mayor promoción al uso de la misma. En la actualidad, existen listados de cibermediadores y centros de mediadores virtuales con alcance nacional e internacional. Por lo que se puede decir que la evolución de la mediación virtual se dio de manera repentina y rápida. De todas maneras, en algunas provincias de la Argentina todavía queda un largo camino por recorrer en el tema de la mediación virtual.

Cómo se están adaptando los tribunales, las partes, los abogados y los mediadores a esos cambios?

La adaptación es mas rápida en algunas provincias que en otras, dependiendo de la zona, el alcance tecnológico y la situación en la que se encuentren las partes, y el tipo de ley de mediación provincial existente. En algunos sectores hay bastante reticencia aún para realizar las mediaciones de manera virtual.

Cuáles son algunas de las tendencias de mediación a tener en cuenta en esta jurisdicción?
La mediación está siendo cada vez más reconocida y utilizada, sobre todo la Mediación Familiar y Patrimonial, en estos momentos estamos frente a un crecimiento sostenido en estas áreas. No es el mismo caso en la mediación empresarial aún. Las mediaciones en entornos virtuales se están popularizando cada vez más pero es posible que cuando termine la situación de pandemia a nivel global, las mediaciones virtuales en Argentina sufran un retroceso a favor de las mediaciones en persona. 

Las mediaciones virtuales a nivel internacional e interprovinciales continuarán siendo tendencia, sin duda.

By Natalia Olowska

GENERAL OVERVIEW OF MEDIATIONS IN POLAND

What are common types of Mediations and who are the common parties?

Mediation can be done as a mediation outside of court or within the court proceedings. It is enhanced by the legal and judicial system as an effective way to save time and costs and is being frequently used in the civil, commercial, family and labour disputes.  

The parties to the mediation are the parties to the claim (or potential claim), be it a splitting or divorcing couple, parents in argument, co-owners in the process of property division, home owners association claims or a payment dispute. 

What are common formats, procedures, and length of sessions, and who typically attends?

Mediation is frequently done just by the parties and the mediator alone, without the parties’ lawyers. Sometimes the co-mediation is used, where two mediators at the same time help parties resolve their dispute and meet with them, which is very much in practice in the case of family matters. 

In the traditional in person mediation, the parties will go to the mediator’s office and attend a session, which is usually scheduled for 2 hours. Multiple mediation sessions on different dates are hence not a rarity, when the parties show interest in reaching an agreement. 

The parties attend the session jointly and caucus mediation is not a default set up, it is rather used optionally. 

All the important mediation guarantees apply: it is voluntary, the neutrality and impartiality of the mediator is a must, the confidentiality of the information exchanged and the mediation talks –  all of it is supported by the Polish legislation. 

What are general costs and who pays?

The costs of the mediation are typically borne by the parties and are governed by the agreement between the parties and the mediator. The costs cover the mediator’s remuneration and expenditures.

In some exceptional cases, when a mediation within the court proceedings is being done with a party benefiting from free legal aid, the other parties may be required to bear all the costs. 

Mediation in the Hague Convention on Child Abduction Cases can also be offered to the parties free of charge.  

There are also some mediation centers that do pro bono mediations.  

ONLINE MEDIATIONS

 Are online mediations lawful? If so, are there any limitations?

Online mediation is lawful and used frequently due to the coronavirus pandemic more than ever. It is legitimate and can lead to entering into a valid agreement and create rights and obligations on the parties.  

Are online mediations accepted and popular by practitioners and parties? If so, what platforms are typically used, from video to e-signatures?

Online mediations are probably not that popular as in-person mediation, but in the times of remote communications they have become very popular for their safety and efficiency, both for the mediators and the parties.

Online mediation is being done via Zoom, Microsoft Teams, or Skype, depending on the tool which is at ease to the mediator and sometimes to the parties too. 

The electronic signing, however, is not a popular feature, which can be attributable to the fact that an electronic signature has a special legal definition requiring a special code which many mediators do not possess and do not invest in having. Therefore, after the online mediation is completed, the agreement most probably will be signed in paper form. 

MEDIATIONS IN THE LAW

Who can mediate? 

A mediator needs to be a natural person, with full legal capacity, enjoying full public rights. A judge in office cannot be a mediator.  

A mediator does not have to have any special educational profile nor expertise. However, those inscribed into the List of the Court Appointed Mediators, need to prove they underwent a mediation training.  The basic mediation training requires 40 hour of education and ends up with a certificate. For family law matters another 40 hours apply. 

What gives mediation agreements authority? Are they enforceable?

Mediation agreements are binding on the parties once signed by the parties and the mediator, and to a certain extent (to the extent they create legal obligation) can be validated by the courts, which will make them enforceable too. 

There are of course cases where the mediation agreement itself will not suffice, and some further endeavours will need to be taken by the parties once the mediation agreement is signed. In family law for example, this applies to the division of property, where the parties after reaching an agreement in mediation will still need to go to the notary or to the court to achieve the desired effects in terms of the form of a deed.

How are courts involved in mediations?

Mediation as a dispute resolution method is promoted by the civil procedure, to the extent that any claim brought to the court should contain a statement whether the parties already sought to resolve their dispute outside of court, especially via mediation. 

The court can direct the parties to the mediation once the case has its file number in the court, even before the fist hearing – such a decision can be opposed by the parties. However, usually, mediation will take place after the first hearing upon the parties’ mutual consent. The court can appoint a mediator for the parties or they can agree on one for themselves. The time for mediation given by the court can be up to three months, it happens sometimes that this is even prolonged.   

A settlement concluded before a mediator, after its approval by a court, has the legal force of a settlement concluded before a court. A settlement concluded before a mediator that has been approved by issuing an enforcement clause is an enforceable title.

When the mediating parties enter into mediation agreement, 75% of the court fee will be returned to the petitioner.

In what types of cases does mediation apply? Are there cases where mediation cannot happen?

Mediation is used extensively in civil, commercial and family disputes, labor law claims as well as criminal offences – whenever it is possible due to the character of the case.

However, social security claims are excluded by law from mediation (this is because the claim is being brought before a court against the public agency, which is the Social Security Agency (ZUS).

LOCAL PRACTICE RULES

Are there rules for when parties do not show?

Usually, but only as per agreement, the mediators charge the parties a fee when they do not turn up without prior notice within a certain time limit.

The Polish Code of civil procedure gives the parties a possibility to consider the costs of mediation as the costs of the entire court case, so when parties do not show, they expose themselves to a possibility of being faced with the necessity to cover the costs of the mediation or even all or part of the costs of the entire proceedings pending before the court. 

Any special rules for when mediation is within court proceedings and when pre-judicial or private outside of court?

The mediation will be done the same, the main difference however, will be  the costs. When the mediation is being done through the court, the fees as provided by law apply, and they are usually much lower than in case of  the outside of court, private mediation.  

EVOLUTION & TRENDS

 How has mediation, specifically online mediations, evolved in the past several years?

The boost for online mediation has been created by the limitations of travel and personal contact due to the pandemic. 

Mediation in general is paving its way slowly and there still can be instances, when parties have not heard what a mediation is nor what opportunities it can bring to them.  

How are courts, parties, lawyers, and mediators, adapting to those changes?

Many courts do not see any role of the parties’ representatives (attorneys) in  mediation, which is also true about many mediators, who prefer to see the parties in mediation unrepresented.  

Online mediation itself encountered a barrier of human limitations when faced with technology, both in mediators and the parties, but it is being domesticated more and more.  

 What are some mediation trends to watch in this jurisdiction?

Co-mediation in family law matters, usually done by two mediators of different genders. Very little or almost none use of the caucus style mediation. Mediation without lawyers as a preferred form by the courts and by the parties. Paper signing of the mediation agreements.

WHAT ARE THE BENEFITS OF MEDIATION IN YOUR JURISDICTION

-It is quicker, more efficient, flexible and less expensive than the court proceedings. It is not a waste of time within the proceedings, as it usually does not stop the entire process, it is being done

-The court will return 75% of the court fee to the petitioner in case the mediation agreement is concluded within the court proceedings.

-The parties can offer themselves solutions and ways out, which cannot be then used against them in the court battle, as bringing them in is ineffective.

-Mediation can easily be done online and in a language other than Polish – which is impossible in the court, where the proceedings are only in Polish and online hearings are still a rarity. 

By Natalia Olowska

JAKIE SĄ KORZYŚCI Z MEDIACJI W POLSCE?

  1. Jest ona szybsza, wydajniejsza, bardziej elastyczna i tańsza niż postępowanie sądowe. Nie jest to strata czasu w postępowaniu, gdyż zwykle nie zatrzymuje całego procesu, ale odbywa się pomiędzy rozprawami – pozwalając zakończyć  postępowanie.
  2. Sąd zwraca powodowi 75% wpisu w przypadku zawarcia umowy o mediację w postępowaniu sądowym.
  3. Strony mogą zaproponować rozwiązania i ustępstwa, których nie można następnie wykorzystać przeciwko nim w batalii sądowej, ponieważ powoływanie się na nie jest bezskuteczne.
  4. Mediację można łatwo przeprowadzić online i w języku innym niż polski – co jest niemożliwe w sądzie, gdzie postępowanie toczy się wyłącznie w języku polskim, a rozprawy internetowe wciąż są rzadkością.

Wiadomości ogólne o mediacji w Polsce

Jakie są popularne rodzaje mediacji i kto w nich uczestniczy?

Mediację można przeprowadzić jako mediację poza sądem lub w ramach postępowania sądowego. Mediacja jest wspierana  przez system prawny i sądowy jako skuteczne rozwiązanie pozwalające na zaoszczędzenie czasu i kosztów. Jest często stosowana w sporach cywilnych, handlowych, rodzinnych i pracowniczych.

Stronami mediacji są strony sporu sądowego (lub potencjalnego roszczenia), to jest np. rozchodząca się para, spierający się rodzice, byli małżonkowie w procesie podziału majątku, członkowie wspólnot mieszkaniowych lub strony sporu o zapłatę.

Jakie są procedury dotyczące mediacji, długość sesji oraz kto zazwyczaj w nich uczestniczy?

Mediację często prowadzą same strony i mediator, bez prawników reprezentujących strony w sądzie. Czasami stosuje się ko-mediację, w której dwóch mediatorów jednocześnie pomaga stronom rozwiązać spór i spotyka się z nimi, co jest bardzo praktyczne choćby w przypadku spraw rodzinnych.

W tradycyjnej mediacji osobistej strony udają się do biura mediatora i biorą udział w sesji, która zwykle trwa 2 godziny. Sesje mediacyjne mogą odbywać się kilkakrotnie w tej samej sprawie, gdy strony są zainteresowane osiągnięciem porozumienia.

Strony uczestniczą wspólnie w sesji, a mediacja stron w osobnych pokojach bez stykania się ich ze sobą nie jest rozwiązaniem głównym, jest raczej stosowana opcjonalnie.

Obowiązują wszystkie podstawowe zasady i gwarancje mediacji: jest ona dobrowolna, niezbędna jest neutralność i bezstronność mediatora, jak też poufność wymienianych informacji i rozmów mediacyjnych – wszystko to jest poparte polskim ustawodawstwem.

Jakie są koszty mediacji i kto za nią płaci?

Koszty mediacji są zwykle ponoszone przez strony i uregulowane są w umowie między stronami i mediatorem. Koszty obejmują wynagrodzenie i wydatki mediatora.

W wyjątkowych przypadkach, gdy mediacja w postępowaniu sądowym jest prowadzona z udziałem strony korzystającej ze zwolnienia od kosztów sądowych – pozostałe strony mogą ponieść wszystkie koszty lub też o kosztach rozstrzygnie Sąd.

Stronom można również zaoferować bezpłatnie mediację w sprawach związanych z konwencją haską dotyczącą uprowadzenia dziecka za granicę.

Istnieją również ośrodki mediacyjne, które prowadzą mediacje pro bono.

 Mediacje online

Czy mediacje online mają oparcie w prawie? Jeśli tak, to czy są co do tego jakieś ograniczenia?

Mediacja wirtualna jest zgodna z prawem i stosowana w czasie pandemii bardziej niż kiedykolwiek. Jest to zgodne z prawem rozwiązanie i jako takie może prowadzić do zawarcia ważnej umowy oraz prowadzić do powstania praw i obowiązków stron ugody mediacyjnej.

Czy mediacje online są akceptowane i czy są one popularne wśród praktyków i stron? Jeśli tak, to jakie platformy są zwykle używane, od wideo po podpisy elektroniczne?

Mediacje internetowe prawdopodobnie nie są tak popularne jak mediacje osobiste, ale w dobie zdalnej komunikacji stały się koniecznością ze względu na bezpieczeństwo oraz łatwość dostępu – stron do mediatorów i mediatorów do stron.

Mediacja online odbywa się za pośrednictwem platform Zoom, Microsoft Teams lub Skype, w zależności od narzędzia, które jest wygodne dla mediatora, a czasami preferowane przez strony.

Podpis elektroniczny nie jest jednak popularny, co można przypisać temu, że podpis elektroniczny ma specjalną definicję prawną wymagającą specjalnego klucza elektronicznego, którego wielu mediatorów nie posiada i nie inwestuje w jego posiadanie. Dlatego po mediacji internetowej umowa najczęściej jest podpisywana w formie papierowej, co również daje stronom pewność uznania takiej ugody przez sąd.

 Mediacja a prawo

Kto może być mediatorem? Czy mogą to być osoby nie będące mediatorami lub czy mogą one być mediatorami spoza Twojej jurysdykcji?

Mediatorem musi być osoba fizyczna, posiadająca pełną zdolność do czynności prawnych, korzystająca z pełnych praw publicznych. Urzędujący sędzia nie może być mediatorem.

Mediator nie musi mieć żadnego wymaganego wykształcenia ani doświadczenia. Jednak osoby wpisane na Listę Mediatorów Sądowych muszą udowodnić, że przeszły szkolenie mediacyjne. Podstawowe szkolenie z mediacji wymaga 40 godzin nauki i kończy się uzyskaniem certyfikatu. W sprawach z zakresu prawa rodzinnego obowiązuje kolejne 40 godzin szkolenia.

Co daje uprawnienia do zawierania umów mediacyjnych? Czy są wykonalne?

Umowy o mediację są wiążące dla stron po ich podpisaniu przez strony i mediatora i w pewnym zakresie (w zakresie, w jakim tworzą one obowiązek prawny) mogą zostać zatwierdzone przez sądy, co nada im również wykonalność.

Są oczywiście przypadki, w których sama umowa o mediację nie wystarczy i po podpisaniu umowy o mediację strony będą musiały podjąć dalsze wysiłki, aby zapewnić ich skuteczność. Dotyczy to np. podziału majątku dotyczącego nieruchomości, gdzie strony po osiągnięciu porozumienia w mediacji będą musiały udać się do notariusza lub sądu, aby osiągnąć zamierzony skutek w postaci przejścia prawa własności.

W jaki sposób sądy są zaangażowane w mediacje?

Mediacja jako metoda rozwiązywania sporów jest promowana w postępowaniu cywilnym,  i na przykład pozew musi zawierać stwierdzenie, czy strony starały się już rozwiązać polubownie spór, w szczególności czy korzystały z mediacji.

Sąd może skierować strony do mediacji jeszcze przed pierwszą rozprawą – takiemu orzeczeniu strony mogą się sprzeciwić. Jednak zazwyczaj mediacja jeśli odbywa się, to dzieje się to po pierwszej rozprawie za zgodą stron. Sąd może wyznaczyć mediatora dla stron lub mogą one uzgodnić takiego mediatora same. Czas na mediację udzielony przez sąd może wynieść nawet do trzech miesięcy, zdarza się też, że może zostać wydłużony.

Ugoda zawarta przed mediatorem, po jej zatwierdzeniu przez sąd, ma moc prawną ugody zawartej przed sądem. Tytułem wykonawczym jest ugoda zawarta przed mediatorem, która została zatwierdzona przez Sąd przez nadanie klauzuli wykonalności.

Po zawarciu przez strony mediaci ugody, 75% opłaty sądowej zostanie zwrócone powodowi (wnioskodawcy). 

Szczegółowe zasady dotyczące lokalnej praktyki mediacyjnej

Co się dzieje, kiedy strony nie pojawią się na mediacji?

Zwykle, ale tylko zgodnie z umową, mediatorzy pobierają od stron opłatę, jeżeli nie stawią się one bez uprzedzenia w wyznaczonym na mediację terminie.

Polski Kodeks postępowania cywilnego daje stronom możliwość traktowania kosztów mediacji jako kosztów sprawy sądowej, a więc w przypadku niestawienia się stron narażają się one na konieczność pokrycia tej części kosztów postępowania cywilnego., a nawet całości lub części kosztów całego postępowania toczącego się przed sądem, z mocy orzeczenia sądu kończącego postępowanie.

Jakie są szczególne zasady dotyczące sytuacji, w których mediacja toczy się w postępowaniu sądowym, a jakie gdy jest ona mediacją przedsądową lub prywatną poza sądem?

Mediacja będzie przebiegać tak samo, jednak główną różnicą będą koszty. W przypadku, gdy mediacja prowadzona jest ze skierowania sądowego, obowiązują opłaty przewidziane prawem, które są zwykle niższe niż w przypadku mediacji prywatnej poza sądem.

Jakie są główne obawy dotyczące mediacji wśród mediatorów, prawników, sędziów? 

Mediatorzy obawiają się tego, że strony będą powoływać ich na świadków w sporze, co jednak zasadniczo jest wyłączone. Prawnicy, a także sędziowe natomiast często nie wierzą w skuteczność mediacji. 

Ewolucja mediacji i nowe trendy

Jak rozwinęła się mediacja, zwłaszcza mediacje internetowe w ciągu ostatnich kilku lat?

Impuls do mediacji online został spowodowany ograniczeniami w podróżowaniu i kontaktach osobistych wywołanych pandemią.

Generalnie mediacja toruje sobie drogę powoli i nadal mogą zdarzyć się sytuacje, gdy strony nie słyszały, czym jest mediacja ani jakie korzyści może im przynieść.

W jaki sposób sądy, strony, prawnicy i mediatorzy dostosowują się do warunków mediacji?

Ciekawostką jest, że wiele sądów nie widzi żadnej roli przedstawicieli stron (prawników) w mediacji, co dotyczy również wielu mediatorów, którzy wolą widzieć strony w mediacji bez reprezentacji.

Natomiast mediacja internetowa napotkała barierę ludzkich ograniczeń w obliczu technologii, zarówno u mediatorów, jak i stron, ale jest coraz częściej spotykana i wszyscy się z nią oswajają.

Jakie trendy w mediacji da się zaobserwować w Polsce?

Takimi trendami jest na przykład ko-mediacja w sprawach rodzinnych, zwykle prowadzona przez dwóch mediatorów różnej płci. Bardzo małe lub prawie żadne jest wykorzystanie mediacji w osobnych pokojach. Mediacja bez prawników jako preferowana forma przez sądy i strony. Podpisywanie umów mediacyjnych nadal odbywa się tradycyjnie, przez podpis na papierze.

Mediator and InstantMediations.com Advisor Fran Brochstein, whose mediation experience spans decades, provides mediation tips to mediators and parties engaged in dispute resolution. She is based in Marble Falls, Texas and can mediate online with parties from anywhere. Contact her through her site Familylaw4u.com at Fran@Familylaw4u.com. If you have any suggestions for future columns, please feel free to contact Fran.

Communicate Effectively with Parties

I don’t take a person yelling and making demands personally. I don’t focus on the exact words they use, but instead focus on the overall emotion they project. Oftentimes, after a mediation has concluded, parties apologize to me about the things they had said, or for their screaming and cussing. I usually assure them that I understand their pain and emotion, and that I don’t take it personally. If you as a mediator cannot build a Teflon wall around yourself, and let parties’ comments bounce off of you, then you won’t do well in family law mediations. You must learn not to react negatively to inappropriate comments by parties.

I once had an attorney tell me not to speak directly to his client. Instead of arguing, I said ok. I then asked the attorney lots of open ended questions regarding his client’s positions, and within minutes, his client was chiming in, wanting to speak. So I encourage mediators to ask lots of open ended questions so that parties can have the opportunity to broadly describe what their goals are and what they want accomplished.

Sometimes, to fully understand a party’s position, I have found it helpful to ask them to define the words they use, or have them explain what meaning certain words hold for them. For example, when someone in Texas says that they want “full custody,” I have to ask them to explain how they define this term. Because in Texas, we don’t use the term “full custody” in family law. It’s usually joint or sole managing conservatorship, which may differ from what the person using “full custody” actually thinks. Because there can be misunderstandings in ambiguous language, it’s helpful to communicate terms accurately, and have parties confirm their understanding of certain words.

I have learned to ask potentially volatile questions in a passive, non-threatening, and non-accusatory way. I usually preface tough questions with something like, “I am going to ask you something that could upset you, but I am not accusing you of anything, so just listen to my question, and recognize that I’m not saying you did this, and know I’m not trying to intimidate you.” I find that asking a volatile question in a non-threatening way means it will usually be well received. Many times the person responding starts to laugh and says, “I knew the other party was going to bring that up.”

Listen to Parties

Most people are not happy when they come to see a mediator. There is conflict, sometimes a very deep one. Usually at least one party feels wronged, and they want justice. They want to be heard. They want to feel that someone believes them. So listening becomes one of the most important things a mediator can do. I let parties talk, vent, and explain themselves. I only usually stop a mediation party while they are on their soapbox when they begin to repeat the same thing, or when time becomes an issue. 

Commend Parties

Commending parties when they rise above the challenges they face with their opposition is a great way to build rapport. When I am dealing with a couple that puts their kids first and truly try to co-parent, I let them know that they are in the top 10% of people I deal with who do co-parenting differently. I let them know that there will be bumps in the road, but if they both always put their kids first and the adult needs-and-wants second, then their kids will thrive. I once had a man burst into tears when I told him that he was a “good dad,”  because no one had ever said anything positive to him before. I now try to commend parents when they are trying to do the right thing. I don’t stop there, I often ask one party how I should approach the other party, or in what ways I can reach the other side. Many times the person will give me some wonderful ideas that truly help me communicate effectively with their opponent. Commending parties builds trust and helps facilitate resolutions to major disagreements.

I love mediating. First, it makes me appreciate my family. Second, it’s like a roller coaster ride – you never know what is around the next corner. It reminds me of that television show Kids say the Darndest Things – at mediation often people say the darndest things, and we should be ready to listen and respond.

Wrapping Up

In closing, I wish everyone a healthy and happy holiday season. May you and your family have the gift of much laughter and joy. I hope everyone is able to relax and enjoy the end to 2020. And may the new year bring us all good health, happiness, prosperity, abundance, and only good surprises in 2021. 

In spring 2020, when covid-19 shut everything down in Southeast Texas, including the ability to host in-person mediations, we went to work helping volunteer mediators at the Montgomery County Dispute Resolution Center. Our aim was to help them help their clients work on resolving pending legal disputes in a time of uncertainty. In those early days of court and mediation office closures, no one knew when courthouses would reopen, or how far civil and family cases would be backlogged. Many parties with pending custody, divorce, and civil claims were destined to spend their summer months in legal limbo unless they found a solution that facilitated virtual mediations.

Having learned about the predicament many volunteer mediators found themselves in at the DRC, we volunteered a couple days, and later contributed many Zoom hours, to train on the basics of online mediation to help mediators interested in connecting with parties remotely.

Receiving this award is an unexpected surprise and it humbles us to know our efforts were appreciated, and that many mediators were equipped to help their mediation clients attempt virtual settlements outside of courts.

IM’s work after the early days of lockdown has only grown. But as in the spring, mediators interested in getting help mediating online can still access helpful training videos on our Lawyers & Mediators Channel, as well as access helpful online mediator forms to help their mediations succeed.

Learn more about my mediation work by visiting my profile.

Mediator and InstantMediations.com Advisor Fran Brochstein, whose mediation experience spans decades, provides mediation tips to mediators and parties engaged in dispute resolution. She is based in Marble Falls, Texas and can mediate online with parties from anywhere. Contact her through her site Familylaw4u.com at Fran@Familylaw4you.com. If you have any suggestions for future columns, please feel free to contact Fran.

Control and Protect the Mediation Process

I had an interesting call recently. A gentleman was referred to me by another InstantMediations.com mediator. He basically told me what he wanted – a 5-minute mediation since he knew that they would never resolve their differences. I explained that it takes at least an hour for both sides to tell me “their story”. I informed him that I always allocate at least 4 hours for a mediation. I also told him that I had a very good success rate with people who swore that their case would never settle. When he realized that he could not dictate to me exactly how the mediation would work, he went elsewhere.

This conversation reminded me of the importance of being in control of the mediation process. You, as the mediator, are the boss. When I first started mediating, I was scared to hurt anyone’s feelings or sound authoritative, but now I just jump in and see where we go. I now assume that no one is ever going to tell me the whole truth or their true bottom line. I have learned that none of this matters as a mediator.

If you are new mediator, just jump in and get your feet wet. You will gradually develop your own style, your confidence will grow, and mediation will become less stressful for you. It will also become more fun. I encourage you to take advanced mediation training. I’ve been mediating over 15 years and I still take at least 15 hours a year in advanced mediation training.

General Tips

Don’t be shy to use your life experiences to help connect with parties. Even though I’ve been mediating for quite a while, because of my life experiences, I tell people that I’m a slow learner and that I’ve made every mistake they have made and probably more. I also let them know that I grew up in a dysfunctional family, and that I was a staff attorney at Houston Volunteer Lawyers for years.

When doing family law mediations, I remind parties that each family is different. Many mediations are similar, but I’ve never had the exact same mediation twice. Comfort parties to know that their issues are resolvable in a customized way.

I do not go forward without the parties signing my Agreement to Mediate. If they refuse to sign it, then the mediation stops. I’ve only had this happen a couple of times.

Tips for When Commencing the Mediation

I try to begin the mediation with some items that I think the parties can agree on. Then I move onto the harder topics. I always offer to do a partial mediated settlement agreement so that the parties only have a few items to bring before the judge if court is absolutely necessary. I think judges appreciate cases with limited issues, and it tends to save the parties money. Why waste a judge’s time if there is no disagreement on certain topics.

I usually start my family mediations saying that today will be a very hard day. We are going to do a lot of unpleasant work. I am probably going to shine a light into the dark corners of their lives. I warn them that I am a clean slate and I don’t know either party. And even if I know their lawyer, I am still an impartial trained professional. I make sure they understand that they will be the decision makers and I don’t twist their arms or make them settle. I also tell them that at the end of the day they will be exhausted and they will need to either just go for a walk, go to sleep, or perhaps enjoy an adult beverage. I let them know that a hard day at mediation is always better than an unnecessary and expensive day in court.

During the mediation, if someone seems stressed or upset, I will ask them if they want to proceed. I often allow people to take a brief break to center themselves and come back refreshed. I had one mediation where a man learned at the mediation that his youngest child was not his biological child. He began to cry so hard that I stopped the mediation and re-scheduled it. His attorney wanted to proceed, but there was no way that a man who could not talk or breath due to sobbing could make a rational decision.

Another time, I once had an attorney assure me that the case was going to settle. But his client was standing beside him with her arms crossed, shaking her head. I finally said to him that he needed to talk to his client because her body language clearly said she was not settling today. We re-scheduled the mediation for a later date and it settled then. The client appreciated that I did not rush or force her to engage in a settlement negotiation during the first session.

As the holidays approach, I find that many parties take the holidays very seriously. I always ask if their family celebrates Christmas Eve or Christmas Day. I discover some families go to church on New Year’s Eve. Some families have unique holiday traditions I’m familiar with. Some families have reunions that can often cause a lot of emotional pain. I encourage mediation parties to be flexible regarding family celebrations. For example, I like to remind parents in custody mediations that I’ve never heard a child complain about having 2 Christmas celebrations!

If you have any suggestions for future columns, I ask you to contact me at fran@familylaw4u.com.

In closing, as we near the end of a very interesting and challenging 2020, I wish for us all fun, laughter, joy and peace in the upcoming holiday season.

Instant Mediations Internet Bar Certificate Seal

The InstantMediations Academy is hosting an E-Mediation Certification Course with Daniel Rainey, of Holistic Solutions, Inc., which trains mediators in online mediations that leads to certification by InternetBar.org.

While October’s course is fully booked, you can register for November’s course here. Each course lasts 4 weeks, and consists of self-paced and live-sessions, and role plays. Zoom links for live sessions will arrive to students via email after enrollment. Members of InstantMediations Complete and InternetBar get discounts. So be sure to join these organizations to get your discount.

Dates

  • Thursday, October 8 (1PM EST):  Online Orientation Meeting (1hour)
  • Thursday, October 15 (11AM EST):  Online Session #1 (2 hours) ODR and Communication
  • Thursday, October 22 (2PM EST):  Online Session #2 (2 hours) -Working Online and Choosing Platforms
  • Friday, October 23- Wednesday, October 28- Mediation Case Role Play
  • Thursday, October 29 (1PM EST):  Online Session #3 (2 hours) Ethics and Review of Practice

Mediator and InstantMediations.com Advisor Fran Brochstein, whose mediation experience spans decades, provides mediation tips to mediators and parties engaged in dispute resolution. She is based in Marble Falls, Texas and can mediate online with parties from anywhere. Contact her through her site Familylaw4u.com at Fran@Familylaw4you.com. If you have any suggestions for future columns, please feel free to contact Fran.

***October is National Domestic Violence Awareness Month (#DomesticViolenceAwareness). If you are a victim of domestic violence, please call The National Domestic Violence hotline now.***

The Major Problem of Domestic Violence in Mediations

In July 2020, I gave a Zoom talk to the Texas Association of Mediators on mediation and domestic violence (if you are a member of TAM, our monthly Zoom talks are included in your membership www.txmediator.org). I’m passionate about this topic because if not handled correctly, mediators can fail to help protect abuse victims when those victims show up at mediation sessions with their abusers.

First the numbers. Although there has been progress in acknowledging domestic violence exists, an average of 20 people are physically abused by intimate partners every minute. This equates to more than 10 million abuse victims annually. 1 in 3 women and 1 in 4 men have been physically abused by an intimate partner, and 1 in 5 women and 1 in 7 men have been severely physically abused by an intimate partner.  

I never set out to handle domestic violence mediations. In my early mediation days I sometimes stumbled into mediations involving violence when a party admitted that it occurred. Or, I discovered the violence by noticing an abused person was showing signs of physical or emotional trauma. Oftentimes, parties or their attorneys never told me there was a protective order in place, leaving me to discover in the middle of a mediation that special precautions were necessary to ensure the safety of all participants. So I learned early on to ask about domestic violence and protective orders when I scheduled mediations.

I recognize today that many family law mediations begin with a joint session. But since I had several mediations where there was a protective order in place and no one warned me, I started putting the parties in separate rooms upon their arrival. I then asked each party if he or she felt comfortable to be in the same room with the other party. I cannot tell you how many times both men and women have expressed fear of being in the presence of the other party.

Address the Issue Right Away

If an attorney tells me of possible domestic violence, or I learn of it myself, I ask for permission to call their client to discuss their fears/concerns about appearing at mediation. I ask what I can do to make them feel safe. I usually let parties know they can take time to think about what they need and to call me back within 48 hours with their requests. By addressing their safety concerns up front, I believe I build credibility and trust before the mediation begins.

For example, a wife’s attorney warned me that her client was terrified of her professional boxer husband. I asked the attorney if I could call the wife and discuss how to make her feel safe at the mediation. The wife and I came up with several ideas: borrow a friend’s vehicle, wear a big floppy hat so that husband would not recognize her, and wait in her vehicle across the street so that she could observe husband arrive first to my office. After her husband was at my office, the wife would call me so I could watch her walk to my office. In this specific case, I made arrangements to use additional mediation space in a nearby office so that there was no way for the parties to ever see each other. At the end of the mediation session, I had her leave 15 minutes before him to help protect her safety. By addressing her concerns, this party was able to relax and feel “heard” at our mediation. We were able to resolve all issues in 2 sessions by shuttling between two offices. The entire time, the husband had no idea where his wife was physically located. I will note that the husband denied ever hitting his wife. But whether he did or not was irrelevant. The wife had expressed fear to me, and my addressing her concerns gained me credibility in her eyes, which helped facilitate an effective mediation.

Believe it or not, people don’t know if they are really in an abusive relationship because they’re used to their partner calling them crazy or making them feel like all the problems are their fault. For example, as an attorney, I once represented a successful woman in her divorce. My gut told me she was a victim of domestic violence. She denied it repeatedly. Toward the end of her case, when she felt comfortable, she admitted to me that her husband had used a door and other objects to hit her, but that since he never physically “touched” her, she did not consider it domestic violence. She was so embarrassed that she compartmentalized the abuse.

A Persistent Problem

Domestic violence is prevalent in every community, and it affects all people regardless of age, socio-economic status, sexual orientation, gender, race, ethnicity, or nationality.  For example, I once was at a cocktail party in The Woodlands, Texas, a community with higher than average household incomes. A man learned that I was a family law attorney and somehow the subject of domestic violence came up. He said that there was no domestic violence in the Woodlands. I replied that unfortunately there was domestic violence in The Woodlands, but that the women could afford better make-up to hide the marks. He ended our conversation very quickly.

Men can be the victim of domestic violence too. For example, I once did a divorce mediation that successfully settled. At the end of our session, both attorneys and the wife left. The husband stayed behind and if he could remain with me for a while. He admitted that he was terrified of his wife and that she was sitting in her vehicle outside. He was afraid that she would either shoot him or run him over. I checked, yep, she was in her vehicle parked in a way that she could easily run him over before he reached his vehicle. She did not leave for over 45 minutes. When she arrived home, their son called his father and told him it was safe for him to leave.

Domestic violence is serious and letting it play a negative role in your parties’ mediation can be harmful. Ask the right questions and make sure you obtain all the necessary information you need to help protect parties.

Tips When Dealing With Dealing with Domestic Violence

Learn more at https://www.thehotline.org/

People who are in an abusive relationship will stay with their partner for a number of reasons:

  1. Their self-esteem is totally destroyed, and they are made to feel they will never be able to find another person to be with.
  2. The cycle of abuse, meaning the ‘honeymoon phase’ that follows physical and mental abuse, makes them believe their partner really is sorry and does love them.
  3. It’s dangerous to leave. Women are 70 times more likely to be killed in the weeks after leaving their abusive partner than at any other time in the relationship, according to the Domestic Violence Intervention Program.
  4. Statistics suggest that almost 5 percent of male homicide victims each year are killed by an intimate partner.
  5. They feel personally responsible for their partner’s, or their own behavior. They are made to feel like everything that goes wrong is their fault.
  6. They share a life. Marriages, children, homes, pets, and finances are big reasons victims of abuse feel they can’t leave.

Here are a few ways to know if you’re in an abusive relationship that you need to get out of:

  1. Your partner has hit you, beat you, or strangled you in the past.
  2. Your partner is possessive. They check up on you constantly wondering where you are; they get mad at you for hanging out with certain people or if you don’t do what they say.
  3. Your partner is jealous. A small amount of jealousy is normal and healthy, however, if they accuse you of being unfaithful or isolate you from family or friends, that means the jealousy has gone too far.
  4. Your partner puts you down. They attack your intelligence, looks, mental health, or capabilities. They blame you for all of their violent outbursts and tell you nobody else will want you if you leave.
  5. Your partner threatens you or your family.
  6. Your partner physically and sexually abuses you. If they EVER push, shove, or hit you, or make you have sex with them when you don’t want to, they are abusing you (even if it doesn’t happen all the time).

Mediator and InstantMediations.com Advisor Fran Brochstein, whose mediation experience spans decades, provides mediation tips to mediators and parties engaged in dispute resolution. She is based in Marble Falls, Texas and can mediate online with parties from anywhere. Contact her through her site Familylaw4you.com at Fran@Familylaw4you.com. If you have any suggestions for future columns, please feel free to contact Fran.

1. Make sure the people can stay longer than the anticipated time in case the mediation goes longer than anticipated. 

Story – A modification case was resolved in 3 hours but we needed to write up and sign a Mediated Settlement Agreement. Suddenly both parties started to leave. Their child had an important program at school that evening. Neither party had told their lawyer that they had to leave early in order to drive to attend the event. Warn parties in advance that they should be prepared to remain during the entire length of the mediation process.

2. Whenever possible, get everyone to sign the Mediated Settlement Agreement at the time you meet. 

Story – I did an evening mediation, everyone agreed to the MSA within 2 hours. I needed to write it up, then have the attorneys and their clients review it. Everyone was tired and wanted to go home. So the attorneys authorized me to write up the MSA and email it to them. They promised it would be signed and returned to me before noon the next day. Getting the MSA signed turned into a nightmare and took almost a week with numerous emails and phone calls to the attorneys to get everyone to sign. 

3. Feed people at mediation. When I first began mediating, I bought “healthy” food but no one ate it. So I shifted to “junk” food. I realized that when people are under stress they want “comfort” food. 

Story – I ordered BBQ sandwiches for an evening mediation. One attorney arrived late. He said he did not want the sandwich and seemed very grumpy and argumentative. I left it in the room and went to start with the Petitioner in another room. When I came back into Respondent’s room the mood was completely different. The attorney was a different person. We settled the case quickly. He admitted that his blood sugar had dropped and that the sandwich really helped. That $6 BBQ sandwich was worth every penny! 

4. I often find it helpful to tell the parties that I’ve run out of ideas and solicit their help in coming up with ideas to resolve their case.

Several times I’ve told parties, “I’m about to declare an impasse, but before I do that, what else can I do to help you resolve your issues?” Sometimes cases seem to get settled at that point. When people realize that an impasse is about to be declared, they are finally willing to make a solid settlement offer in an effort to be done with the dispute.

5. I’m often surprised how often the opposing attorneys have not talked to each other.

Many times I take the attorneys outside away from their clients and just ask them where the case is and what is it going to take to resolve the outstanding issues. 

Story – One time I had 2 very aggressive, successful male attorneys. We were stuck. So I took the 2 attorneys out and I just sat back and watched them access each other. When each realized that the other was competent and comfortable with going to trial, one attorney made a reasonable offer, and the case was resolved rather quickly. 

6. I have found it very useful to have a brief meeting with the attorneys alone before even starting the mediation.

I often ask attorneys if there have been any offers made between the parties. Sometimes I ask about the best way to approach their client. I have found these pre-meetings make the mediation go much quicker. 

Many times the attorneys have not talked to each other and this is their chance to talk in an informal atmosphere. They don’t have to “posture” for their clients. Plus, sometimes the attorneys give me a lot of insight into the personality of the parties or what the “real” issues is. 

Sidenote: I’ve unfortunately had to introduce an attorney for the first time to his or her client at mediation. The 2 never interacted before because a paralegal did all the communication. The first time this happened at a mediation I was surprised. After all these years experiencing this I am no longer surprised.


Mediator and InstantMediations.com Advisor Fran Brochstein, whose mediation experience spans decades, provides mediation tips to mediators and parties engaged in dispute resolution. She is based in Marble Falls, Texas and can mediate online with parties from anywhere. Contact her through her site Familylaw4you.com at Fran@Familylaw4you.com. If you have any suggestions for future columns, please feel free to contact Fran.





1. As a mediator, you will never know what it takes to settle a case. And you don’t need to know.





I’ve learned that everyone (attorneys & parties) never tell me their true bottom line. So many times I’ve seen a case settle even though at the beginning of the mediation the person told me that they would never settle if they did not get “xx”. But at the end, the “xx” item gets discarded. So take every offer even if you think it won’t be accepted.  You are there to facilitate discussion but recognize that you never truly know a person’s bottom line.





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Mediator and InstantMediations.com Advisor Fran Brochstein, whose mediation experience spans decades, provides mediation tips to mediators and parties engaged in dispute resolution. She is based in Marble Falls, Texas and can mediate online with parties from anywhere. Contact her through her site Familylaw4you.com at Fran@Familylaw4you.com. If you have any suggestions for future columns, please feel free to contact Fran.





1. When scheduling or running a mediation, don’t be intimidated by a difficult lawyer.





Recently I saw a post on Facebook on an attorney/mediator group about mediating on-line versus in-person during this current Coronavirus health crisis. One of the attorneys insisted that the mediation must be in person only.





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Professionals from the USA, Russia, UK, Spain and Poland gathered together to help other professionals and their clients experience online mediation in a family law case. The times of the pandemic affected family members all over the world. Some of the visitation orders/contact rights cannot happen or be enforced. Cross-border family relationships may encounter obstacles, necessitating mediation to help bring repair and resolution to difficult conflicts.

In this video you will see:

1. how a mediator can help parties reach compromise;

2. how easy and comforting the online mediation can be for the parties;

3. the role of an attorney – the party’s representative in mediation, bringing proposals, motivating the party and offering instant legal help;

4. how the ZOOM online mediation works, featuring the breakout rooms for caucus mediation;

5. and how the mediation agreement can be signed online, ending up the mediation process with success

0:23 MEDIATOR’S OPENING STATEMENT

8:06 PRESENTING THE EVIDENCE ONLINE IN MEDIATION BY SCREEN SHARING

16:36 MEDIATOR EXPLAINING THE BREAKOUT ROOMS to do the CAUCUS MEDIATION and the broadcast feature to communicate with the participants

17:28 PARTIES MOVED INTO MEDIATION IN CAUCUS ROOMS / BREAKOUT ROOMS

1:08:38 PARTIES RETURNED TO MEDIATE IN MAIN SESSION / MAIN ROOM

1:14:00 MEDIATOR PREPARING FIRST DRAFT OF MEDIATION AGREEMENT

1:14:50 PRESENTING THE DRAFT MEDIATION SETTLEMENT AGREEMENT and amending the agreement

1:23:37 MEDIATOR PRESENTING THE E-SIGNING PROCEDURE, electronic signing of the binding mediation settlement agreement

1:29:31 MEDIATOR’S CLOSING STATEMENT NOTE: due to the educational and awareness-bringing purposes of this video, some of the legal and jurisdictional issues were simplified.

This article is being published after the recent integration of the e-signature tool for mediators into InstantMediation.com

After successfully negotiating a final settlement agreement between disputing parties, mediators find themselves needing to draft the settlement terms, and most of the time, needing to obtain the parties’ signatures beneath those terms.

In traditional in-person mediations, a mediator would typically type up the mediated terms, present the draft to the parties for review, and if the draft accurately captured the parties’  agreement, have them sign the agreement. The parties would then leave with their copy (sometimes containing the mediator’s signature as well), and all would be right with the world.

However, in the age of online mediations, mediators found themselves resorting to e-signature platforms such as DocuSign, HelloSign, and Adobe Sign, just to name a few. They did this for the ease and convenience it offered in securing electronic signatures from remote parties. They saw the flexibility it provided all participants to be able to sign with their finger on a smartphone screen instead of doing the 2005-era email-print-sign-scan-email dance, or worse, 1995-era faxing thing. And they were comforted by the growing legitimacy and legality e-signatures were afforded by businesses and courts–See the United States Electronic Signatures in Global and National Commerce Act (ESIGN), the Uniform Electronic Transactions Act (UETA), and the EU’s General Data Protection Regulation. All discussing e-signatures in some form or another, including the validity of an individual’s electronic signature, and the protections that come with it.

But the benefits utilizing e-signatures was not without its costs, some literally. Some e-signature platforms would charge $30 or more each month for an individual to send out electronic signature requests to clients. Other platforms would cut corners in protecting customers’ personal data. On the implementation side, some users failed to  utilize quality controls in their workflows to ensure their e-signing clients received a copy of their signed document. Or they failed to destroy incomplete documents containing signatures of just one or some parties.

The following are some tips I would give to online mediators to protect the e-signing process and make sure their parties have a quality experience.

1. ALL SHOULD SIGN BEFORE THE MEDIATION SESSION ENDS – The mediation is not over until you the mediator declare an impasse or the parties have signed off on their agreement. Letting parties go prematurely with their promise that they will later sign the agreement is a recipe for disaster. Be sure to keep your Zoom meeting running until everyone has signed off on the agreement, and you have sent parties their final copy containing all e-signatures.

2. PREPARE A COMPLETED DOCUMENT – Make sure the document to be signed is a thoroughly completed representation of what the parties will actually review and sign. Unlike when using pen and paper in in-person mediation, you cannot just scratch out, or write in and initial changes in an electronic document once it’s sent out for review and e-signature. You should make sure you think through all the terms that need to be typed into the mediation agreement BEFORE sending it out to the parties. These terms should include the parties’ agreement terms, as well as the state laws or jurisdictional rules that may also need to be written into the document to give it legitimacy. In Texas for example, there are certain words regarding the binding nature of the  mediation agreement that must be written conspicuously into the document itself for all parties to see and read before they sign. So be sure you have typed in all necessary information into the mediation agreement. It may help to keep a checklist on the side to help you remember all the topics that must make it into the final document before it’s sent out for signature.

3. BE VIGILANT AGAINST DURESS — A benefit of in-person mediations is the ability to see the party sign in front of you. With online or remote mediations, oftentimes parties are signing from a distance, and they may be in an environment where they are facing threats, coercion, or pressure. Mediation is a voluntary process (unless court-ordered), and people need to come to negotiated settlement agreements without fear of threats, and they should not sign under duress. Make sure to repeatedly ask parties if the agreement is THEIR agreement, if they will stand by THEIR agreement, and if they are entering into THEIR agreement voluntarily. If you sense something is wrong, listen to your gut. If you sense an individual is signing under duress from their location, especially if they are residing with the other signing party, then you as a mediator have an ethical decision to make, which includes possibly declaring an impasse and ending the mediation. I’m not talking about the “crying signer.” Not every waffling party who cannot make up their mind justifies canceling a mediation. But we are discussing clear cases of abuse, threats of harm, and other situations where it is plain to see a person is being coerced into a decision not their own. Be careful. Be vigilant. Try your best to make sure e-signers are signing from their location voluntarily and without duress.

4. DESTROY UNOFFICIAL COPIES  – In the drafting process, it’s normal by the end of the mediation session to end up with loose pieces of information that never make it into the finalized signed document. But the last thing you need is having multiple conflicting pieces of information become post-mediation fodder for arguments between the parties. The parties should walk away with the same copy of their e-signed mediated settlement agreement, signed by all official parties to the mediation. Control the potential damage that might come out of post mediation disputes by making sure everyone relies on only one official copy. Destroy everything else to prevent confusion between the parties.  This means also deleting unused, unsigned, and incomplete draft versions of mediation agreements sent to the parties for e-signature still inside your e-signature software. You should keep your own templates of course, but these should not contain other parties’ terms or information.

Danielle Comeaux, a mediator at DANIELLE CLARKE COMEAUX, PC, and early adopter of InstantMediations, agreed to sit down and share her experiences mediating cases online. Danielle hosts multiple online mediations each week during the Coronavirus pandemic, and has become a go-to mediator for getting cases settled. Her insightful and candid responses below may be of value to other online mediators expanding into online mediations.

  1. Where do you work and what percentage of your practice is devoted to mediations?
    • I work at Greenway Mediation Center in Houston, Texas. 100% of my practice is devoted to mediation. I do nothing else other than mediate full time. 
  2. How long have you been doing online mediations?
    • I only recently started mediating online – courtesy of COVID-19. Prior to that, I was a die hard believer that face to face mediations was the only way to do it. I’m not sure, in the long run, my belief has change, but right now, I’m thankful for the alternative option as on-line mediation has allowed me to, overnight, convert entirely from face to face to on-line.
  3. Before the Coronavirus pandemic, were you prepared to handle parties and attorneys online for mediations?
    • No. In fact, I was a firm objector to on-line mediations. But, once it started to become obvious that we might not be able to accommodate face to face mediations because of the pandemic, I immediately sought out the best format to offer online mediations – and that was Zoom.
  4. What does your online mediation desk look like when you are hosting a mediation online?
    • I still go into my office every day. I have taken over one of our conference rooms. I have stacked some books upon which I place my laptop in order to have a better visual platform. I do have an Ipad I carry with me as well – some of my clients cannot use Zoom and need to attend via Webex, so I have a different device so I can accommodate different software running at the same time. I have since learned that I can run multiple on-line mediation software programs simultaneously on m laptop, and so I don’t need the Ipad as much now.
  5. What is one challenge you have faced hosting online mediations through Zoom?
    • The greatest challenge, because there are a few, is in the on-boarding – getting the lawyers and their clients into the meetings – it’s not something that people even knew about 8 weeks ago, and now everyone is having to figure this out. On the fly. I have a fantastic staff who is dedicated to help everyone join the meetings. From there, there are few challenges, if any.  Probably the only other major challenge I have to  face is the objection to doing it at all, and/or the medium to do it. I have a few clients that cannot use Zoom, so finding a way to utilize multiple software mediums at the same time has been an issue. 
  6. What is one surprising benefit you have experienced while hosting online mediations?
    • The willingness of everyone to try it out! I didn’t lose a single mediation when we had to convert from face to face to online. I am truly amazed at everyone’s willingness to participate. And, even the old dogs can learn new tricks! 
  7. What is one tip you would give mediators who are new to online mediations?
    • Be patient, both with yourself and with others. This is new to everyone, so patience is key for all. It always works out – just give everyone time. 
  8. What is one way the InstantMediations platform has helped you do your work as a mediator?
    • It gave me an immediate referral source to lean on to learn – everyone has been incredibly helpful, and we all share our issues and exchange helpful hints – it’s a great resource. And, connecting with people all over the world – well that’s just cool as all get out!! 
  9. What is one interesting thing about you as a mediator few people in the public know?
    • As a mediator, I’m not sure there is anything that sets me apart from others. Generally, I am licensed to practice in Texas and the United States Virgin Island, and I lived and practiced in the USVI for almost 6 years. There, I learned an entirely different culture and a way of life which gave me a tremendous outlook on different perspectives on cultures and ways of living.
  10. Are there any developments you hope to see in the practice of online mediations as this trend continues?
    • Honestly, for me, I’d like to see the return of face to face mediations because that’s what gives me the greatest joy as a mediator. With that said, I hope that now that we know we can successfully use technology to gather people electronically, we will have more “attendance” remotely when otherwise, parties would not intend to appear except by telephone. 

Mediator and InstantMediations.com Advisor Fran Brochstein, whose mediation experience spans decades, provides mediation tips to mediators and parties engaged in dispute resolution. She is based in Marble Falls, Texas and can mediate online with parties from anywhere. Contact her through her site Familylaw4you.com at Fran@Familylaw4you.com. If you have any suggestions for future columns, please feel free to contact Fran.

After being an attorney almost 30 years, I have learned that I have never
had the exact same case twice. What I like about family law mediation is that it allows me to think outside the box and to be creative. Unlike when criminal defense lawyers see bad people at their best, in family law, we see good people at their worst.

My Experience and Tips

Hopefully I can share some stories so that you can avoid some of the
mistakes that I’ve made. What I learned is that if you follow the mediation
guidelines you were taught, you will stay out of the way and let the process
work. Keep your ego out of it. It takes some time but the mediation process
works if you just let the magic happen. Like making a delicious soup, sometimes it takes awhile for the ingredients to all come together. As the mediator, it’s important that you don’t stand in the way of things coming together. It might not be the way you think it should be, but it’s not your agreement.

It is your job to treat each person with dignity and respect. People want to
be heard. Many people are paralyzed by fear and they feel like they are the
only one in the world with their problems. As a mediator you must take the time to address their fears, worries, concerns, etc. But after you have heard the same thing three times, it’s time to cut it off gently but firmly. I find that
I cannot settle a case until each person has told me their story. I try to use
the same words that they used so that they feel heard.

I never get invested in the number of cases I settle. I’ve had many cases
settle 24-72 hours after mediation. As a mediator, I try to plant some seeds
and many times it takes awhile for the seeds to sprout.

You are in control – As the mediator, it’s YOUR mediation. Attorneys often
think that they are in control. I let them think they are in control, but I
usually let them say their peace and just move forward. I had one attorney who refused to let his client talk to me. So I just talked to the attorney and within a few minutes his client was chiming it. I could have argued with the attorney, but by simply going forward with the mediation, I moved the mediation process along.

Third Parties in Attendance

Third parties – I’ve had good luck with allowing 3rd parties attend
mediations. Sometimes the 3rd party is the actual decision maker or the
problem. Of course, at the beginning of the mediation, I state that they are
there as long as I feel that their input is productive. If I feel they are
negatively impacting the mediation, then I can ask them to leave

One positive story – I had a dad (the maternal grandfather) who came with
his adult daughter who was getting a divorce. The daughter had a young child, and the daughter was attending college. She and the child lived with her parents. For this dad, understanding how child support, custody, rights & duties, etc. were determined in Texas, was vital. By having him present, it
make the likelihood of her future co-parenting with her ex much easier.

One negative story – I had a nurse, a friend to a wife, show up half-way
through the mediation. She was argumentative and disagreed with everything the wife and her attorney had discussed. I had her leave the room. Toward the end of the mediation I brought the nurse back because she knowledgeable about the divorcing couple’s finances. Her attitude was much better after she sat in the waiting room for an hour. Upon her return, I made it clear that she was not a participant to the mediation, but merely present to assist her friend in making sure the finances were divided fairly. She was used to giving orders and I made it clear that she was not going to control the mediation. Only with that understanding was her presence effective at the mediation.

Working with Pro Se Parties

I have done many Pro Se (no attorney) mediations. I screen them carefully.
In the initial phone call and again at the beginning of the mediation, I make
it crystal clear what my role as their mediator is and what I’m not allowed to do. I developed a list of attorneys for them to use to do the post-mediation legal paperwork, or they are free to hire any attorney they want to do the paperwork.

One positive positive story – I have done mediations with couples worth
millions. Most have already talked to several board certified attorneys so they know how much their deposit and hourly rate will be if the attorney was retained. One man said that they decided to use me to resolve their issues and use the money saved in legal fees to pay for their child’s college fund. He told me that he was sure that I saved them around $100,000 in legal fees since just discovery of their vast assets would have cost a lot of money. Of course, I made sure that both spouses were knowledgeable about their finances and that neither thought the other was hiding assets. It goes to show, Pro Se parties can be extremely sensible and a joy to work with.

One negative story – A man called and wanted to mediate. I had a bad feeling but he called/texted and emailed so many times that I finally scheduled him. I had his wife arrive 30 minutes early and I put his wife in a separate room. She said that he had threatened her if she did not show up. She was terrified of him. I handed him back 100% of his money and asked him to leave. I told him that I was not the right mediator for him and that it would be a disservice to take his money. He argued with me but I made it all about him and his needs so eventually he left. I did not let his wife leave until 30 minutes after he left. This incident reminded me to trust my gut. When red flags are raised, heed them as warnings. Especially if the parties lack legal representation.

An Informative Website

I have a lot of people call me because I include so much free information on
my website. Even people with attorneys feel more comfortable after looking at my website and reading all the information I have on my page. At least
semi-annually I review my website.

For example, I have a short-hand rendition of the parental rights and duties
in Texas. Most people have never heard or seen these before. I added this page to my website so that people can look at it ahead of time and begin to become familiar with how Texas courts expect parents to behave as they co-parent their children.

When marketing yourself as a mediator to the public, make sure to provide
some free information to help parties prepare to meet you. It will save you a lot of time and energy in explaining concepts at the mediation.

The Hague Convention on Child Abduction 1980 (full name: Hague Convention on the Civil Aspects of International Child Abduction, concluded in the Hague on 25 October 1980) is an international treaty aiming at prohibiting relocating the children abroad without the other parent consent and if such a relocation already took place unlawfully – to return the child to the country the child was abducted from. 

It is a very powerful tool, where the application of law may have very severe effects on everybody involved and in particular – on the children who are being a subject of the dispute in between their parents.

Therefore the mediation in such cases is of extreme importance, and it really is a special type of mediation. It needs to be quick, it needs to embrace the multicultural aspects and it needs to aim at creating the long-term arrangement between the parents to prevent children being abducted back and forth from one country to another.  

What is the essential kit for mediation in the Hague abduction case?

  1. Good lawyer with experience in both family law and the application of the Hague Convention;
  2. Experienced mediator/s being able to proceed quickly and meticulously in your language (or – best case scenario – all the languages involved) and with delicacy on all the cross-border issues relating to child/children to be mediated, 
  3. A truly reliable on-line tool, enable to connect clients, lawyers and the mediator between the countries, continents, languages, time zones. 

Please remember, that the mediation in the Hague Convention Cases is the only way to truly resolve the real issue – namely where the abducted child/children will live and what the visitation scheme (contacts, possession) will look like. The court proceedings themselves in the Hague Convention Cases will not solve those issues. They are designed only to establish the appropriate jurisdiction and are therefore of an auxiliary nature, in other words, they serve the purpose of establishing the country, in which the real process, handling the issues of the child’s residence and contacts, will be resolved on the merits.

In the mediation regarding the Hague Convention all the issues relating to the child will be resolved amicably and no other court proceedings will be necessary, which is cost effective, time saving, stress avoiding and – most important – focusing on the children and their welfare long-term.

Recently, on the Lawyer 2 Lawyer podcase hosted on the Legal Talk Network, Attorney Kelly Chang Rickert discuss the pros and cons of mediation over litigation in divorce proceedings, and the impact on the couple going forward.

Mediation is aimed at bringing agreement into a conflict situation. The conflict situation often results from communication barriers. One of the most obvious communication barriers language. 

How is it possible then to bring agreement into a situation where more than one language is involved  and where the communication barrier already exists?

The common sense allows us to see, that in any situation, whether business or private, before the conflict had arisen, there was at least a minimum level of understanding and agreement between the now-conflicted-parties. 

So if you are in the mediation process involving different languages, in simple words you are trying to make parties involved communicating in the same language… And this is how you do it:

  1. Think ahead: remember that apart from the necessity to engage the interpreters/translators in the mediation process, it might be wise to consider a mediator who can operate the other (or both!) languages that the parties speak.
  2. Prepare yourself: remember that different languages often bring different cultural background issues with them. If you are mediating an intercultural case, make sure you prepare yourself about it in advance, e.g. speaking to someone from a particular cultural field or… having a mediator from this particular cultural background. 
  3. Make sure you agree on the language of the mediation, which involves also the mediation documents. Please note that these do not necessarily need to be in the official language of the country you are mediating in or the language of the court your case is to be heard in.
  4. Ensure that everybody understands what is being said, read and drafted – the questions ensuring that all is being understood need to be repetitive yet polite. Please remember that a participant in the mediation might be too shy to declare voluntarily they do not understand a certain issue or phrase and ask for explanations about it. It will be easier for them to admit it, when asked a specific question by the mediator.
  5. Throughout the entire process of mediation please ask open questions to check the common understanding, but make it in a way that they are not offensive or pay everybody’s attention to one of the parties’ difficulties. The questions will therefore need to  relate to the language issues, mediation in general, a particular stage of the mediation process.   

Having said all that, the experience shows, that:

– a mediation involving different languages will also engage more explanation than within the  average mediation process.

– having a co-mediator in a case embracing different languages is a good solution giving the parties more certainty as to whether they follow the entire process properly. 

But most of all, in any case regarding different languages and/or different cultures, please make sure that all the participants of the mediation process feel understood and respected.

Now that the age of online mediations is upon us, internet security is on the top of everyone’s mind. Safety for mediation participants from threats such as online bullying or stalking is important. So are security of their information, including credit card information used to pay for mediation services, or digital data shared between the parties with their lawyers or mediators. Or what about ensuring confidentiality of the parties’ private talk. The meditation process is supposed to be a confidential one, free from the fear that what one says at a supposed confidential discussion will one day return to haunt them. 

A rationale for confidentiality is simple: people will not enter frank discussions and make offers if those offers will later be used against them. The confidential nature of mediation helps parties know that they can speak freely to try to reach agreement and compromise on their differences. 

In the traditional in-office mediation model, as long as the parties have 4 walls, and are all present for the meeting, controlling against spying, secret recordings, and uninvented friends, or family is somewhat easy. Once the mediation leaves the traditional walls of the mediator’s office, things become difficult. Virtual or remote mediations require different precautions to protect the integrity of the mediation process.

Some important assurances a mediator hosting a remote mediation should have are: 

1. The mediation communications should be encrypted to guard against spies and hackers.

2. The parties should be reminded up to the commencement of the mediation of the strict confidentiality rules that exists, and the consequences for breaking them.

3. Technology preventing recording and screenshotting  should be utilized whenever possible to prevent the unauthorized capture of the mediation process.

4. Parties who are remote on laptops or phones should use headphones with microphones  when possible to make sure only they are participating in the listening of the discussions. 

Mediators should work hard to ensure confidentiality, remembering that while technology offers wide opportunities to reach potential parties who wish to find non-court ways to resolve their legal disputes, the technology also invites unscrupulous individuals with the ability to breach confidential discussions. Mediators should use good technology, and common sense to ward off such threats.

While it is mostly known amongst lawyers and their clients why mediation in general is being recommended, there are some features that make the mediation online in family cases really special.

So on top of what is usually given as examples why mediation in family cases is so reputable, namely that it is: cost effective, time effective, enables to ensure privacy and promotes made-to-measure solutions, please know that there are even more benefits if you do the same mediation online!

You might ask yourself how it is possible. All the above benefits are enough to give the mediation a try, but… Look at that!

  1. mediation online is not only quick, it’s even quicker! just think that instead of travelling to a distant place, pay the costs of the journey, find a parking lot and pay for it, you do your mediation without driving, parking and all of it. See: if done online the mediation is easier to schedule, quicker to take place and saves energy and costs!
  2. more efficient – choosing the mediator from amongst those, who not only possess the mediation skills but can also help manage the electronic means and electronic documents with electronic signature, helps process any documents, and the mediation agreement in particular,  faster!
  3. it enables you to handle the mediation in a friendly environment, in a place which you choose for yourself or agree with your lawyer. It can be a place which you already know and which does not intimidate you. You can even be accompanied by your favourite pet!
  4. since family law issues are almost 100% sure to be the most important in your entire life, you are guaranteed not to be free from emotions. Also those negative or abrupt ones! Doing the mediation online gives you a chance not to suffer through those emotions so much for a few reasons: the one above in point 3, but also the fact that you are not being present face to face with the persons that get on your nerves… there is a glass/electronic media barrier between you… The communication and therefore resolving the complex matters is therefore easier and smoother.
  5. it can help overcome the barrier of time and space. In today’s world plenty of family issues involve cross-border if not cross-continent aspects… To synchronise such a mediation takes time and effort. When done online all of it can be forgotten – the mediation just takes place as if you were in the same time zone, in the same climate and within the same territory.

Family case with its complexity and emotions involved is particularly appropriate to be settled on line. With an appropriate mediator and appropriate tool it will save you stress, sleepless nights and words which you would rather not hear nor say.

The traditional model of formal alternative dispute resolution required that mediators own or rent office space to meet parties and their legal representatives. In that model, a mediator might use their space containing a conference room and several caucus rooms for small group meetings. They might also rent shared space among a group of mediators, including sharing a receptionist who calendars mediations for multiple mediators. But in the age of online mediations, is access to physical office space for mediators an absolute necessity? The answer is Yes and No.

Yes: As every practicing mediator knows, whenever one deals with multiple parties, disagreements will come up. In fact, parties do not need to disagree, there may be complications based on preferences…

As the number of mediators grows, so does increased competition…