Resources for the Public
Resources for the public are for those who would like a basic understanding the process of mediation and assistance finding a mediator.
If you are need of mediation, facilitation or consultation services, please email email@example.com or call 612-216-5171.
If you are interested in family mediation, please read our Family Mediation Guide.
What is mediation?
Mediation is a general term for a process in which an impartial third party helps people solve problems, facilitate conversation, helps disputants negotiate, builds understanding, and helps them find creative solutions. Mediation has a set of ethical boundaries including clarity of process, mediator impartiality and participants’ self-determination. Self-determination is the key to the mediation process – it means that the mediation participants are the people who make the decisions, not the mediator. There are many forms of mediation in Minnesota, including community mediation, mediation to resolve legal disputes, labor mediation, organizational/workplace mediation, among others.
What or who is a mediator?
A mediator is a third party neutral, or an unbiased individual, who can assist you and the person with whom you have a conflict talk about the issues and concerns involved. The mediator’s job is to facilitate communication and cooperation, help the people at the table identify issues, assist in generating options, and help memorialize an agreement, if any. A mediator cannot impose his or her will upon the mediation participants, but must remain as neutral and unbiased as possible during the process.
Each mediator has a unique style. Mediators can, and sometimes do, set ground rules for the mediation process, such as speaking respectfully to others, or listening to others without interrupting. These rules help the mediator provide a structure to the process. Mediators usually provide an orientation at the beginning of the first mediation session to introduce you to the mediation process. Mediators will gather some information ahead of the session, at least the basic information about who will attend the mediation session. Do not hesitate to ask your mediator questions at any stage of the process.
What is mediation in the legal/court context?
Mediation of lawsuits or legal claims is a process, governed by Minnesota General Rules of Practice for the District Courts Rule 114, in which a mutually-chosen or court appointed neutral third party facilitated the communication between people to promote settlement. It is an alternative to asking the court to decide the outcome of a dispute. The mediation process provides a way for you and someone with whom you have a conflict to sit down and talk. With the assistance of a neutral, you and the other person will be given the opportunity to define problems and issues that need to be decided, figure out your needs and how they can be best met, address and possibly resolve problems, decide certain issues, and potentially come to a mutually satisfactory agreement. Mediation encourages communication so that you and the other person will be able to work together more effectively and solve future concerns on your own, especially if there is an on-going relationship. If you and the other person resolve the conflict and create an agreement, the agreement can be incorporated into a court order if a lawsuit has been filed. Mediators in Minnesota follow this rule:
A mediator shall recognize that mediation is based on the principle of self-determination by the parties. It requires that the mediation process rely upon the ability of the parties to reach a voluntary, uncoerced agreement. The primary responsibility for the resolution of a dispute and the shaping of a settlement agreement rests with the parties. A mediator shall not require a party to stay in the mediation against the party’s will. Minnesota General Rules of Practice for the District Courts Rule 114 Appendix – Code of Ethics, Mediation Rule 1 Self-Determination.
What are the benefits of mediating a legal issue?
- Mediation is a voluntary process, in other words, all those involved in the dispute must be willing to mediate, or no mediation takes place. Your legal rights could be (and probably are) at stake in mediation, so if you are unsure whether you want to mediate, you should consult an attorney, a court clerk, or a friend or family member you trust.
- Mediation is a confidential process. Your mediator should have you sign an Agreement to Mediate that clearly states the confidential nature of the process before the process begins. By signing the agreement, you will be bound by the confidentiality statement, as well as everyone else who signs. This type of confidentiality protects settlement offers and other information revealed by way of mediation negotiations, but it does not protect “otherwise discoverable” information, meaning information that can be found through the discovery process prior to litigation. See Minnesota General Rules of Practice for the District Courts Rule 114.08.
- Mediation is a self-determined process. As discussed above, self-determination is the most important part of the process. Mediation offers the opportunity for you and another person to work out your own agreement, instead of asking someone else to make decisions for you. If you come to an agreement in mediation, you will know the outcome immediately and you will have a chance to help craft that outcome yourself.
- Mediation will probably cost you less than litigation. The cost of mediation depends on the complexity of the issues involved, the number of mediators you hire (some mediators work in teams) whether you hire an attorney to help you mediate, the number of sessions you require, and more.
How much does mediation cost?
The cost of mediation depends on the complexity of the issues, the mediator’s fees both for sessions and for administration, attorney’s fees if you choose to hire an attorney and possibly more. Be sure to get an understanding of the fees involved up front.
How are mediators trained?
The state of Minnesota does not license or certify mediators. Minnesota law does not require mediators to take any kind of training. However, Minnesota does have a list of mediators and other neutrals, called the Minnesota Statewide ADR Rule 114 Neutrals Roster (or the Rule 114 Neutrals Roster), who have taken a required amount of training. To be on the Rule 114 Neutrals Roster, mediators must take training that has been approved by the Minnesota Supreme Court. To meet that requirement, most mediators take a 30-hour general mediation skills course or a 40-hour family mediation skills course in mediating family matters that includes information on domestic abuse, ethics and family dynamics. To stay on the Rule 114 Neutrals Roster, a mediator must take 6 hours of additional training each year. Mediators have backgrounds in different professions, trades and lines of work. They are not required to have any other training or experience.
How do mediators get paid?
Usually mediators are paid by the two people or “sides” in the dispute. Often each person pays half the cost of the mediator but you can ask the mediator to include the cost as a topic to be talked about during mediation and you may decide to split the cost based on your incomes or any other way that both of you see as fair.
Most mediators charge by the hour. Most have a set hourly fee. Some mediators have a “sliding scale” and charge according to your ability to pay. Mediators should not charge a percentage of the value of your property and incomes. Other than the hourly rate, some mediators may charge fees for working in pairs, to cover administrative costs and overhead, and for time to write up your agreement.
It is advisable to ask any mediator the following questions:
How much do you charge and when do I have to pay you?
How does your billing system work?
Do you charge for drafting the agreement or for administrative time?
Will you make arrangements for a payment plan?
Do you reduce your fees for low income clients or have a sliding fee scale?
Can each of us pay based on our own income?
If you have tried to find a mediator, but cannot find one you can afford, ask the judge or court administrator where to find an affordable one, use the court sponsored program in your county, or ask if the judge can help settle your case.
What can I expect in a mediation session?
The mediator will give some kind of orientation at the first session. Even if you received some of the same information over the telephone, most mediators will talk about:
- The ground rules for mediation sessions
- Their training, experience and charges
- An explanation of mediation and why it is confidential
- How no one, not even the court, can force the mediator to repeat what either of you said during mediation
- The schedule for sessions
- Each person’s responsibilities and the agreement to mediate
- Any concerns and questions you have about the process you are about to go through
After the orientation session, if you all agree, some mediators may talk separately with each person. That private meeting may be called a caucus. In mediation, a caucus is a private, confidential discussion between the mediator(s) and one “side” or person involved in the conflict. A mediator:
- May have a caucus with you or the other person, one at a time
- May have several caucuses with you or the other person throughout the mediation
- Should never tell the other person what was discussed during a caucus with you unless you tell the mediator it is OK to do so
- Should never tell you what was discussed during a caucus with the other person unless that person tells the mediator it is OK to do so
A mediator uses a caucus:
- To give you a chance to say anything you want
- So you won’t be nervous about saying things in front of the other person
- When emotions are running high or they get in the way of working toward an agreement
- When you need help identifying the issues or developing your questions
- When you need the mediator to help you think about how you are negotiating
- To get information you may not yet have provided
Some mediators will welcome the opportunity to meet with each of you separately. You can ask to have a private caucus (or a break) whenever you feel you need to.
How can I prepare for mediation and negotiation?
Before coming to the first mediation session, it is a good idea to:
- Take the time to gather all the information you will need to resolve all the issues
- Identify your needs and be prepared to tell them to the mediator
The next step is to identify the points that you would like to address during the mediation. It might help to make some notes before you go to your first mediation session, so that you remember to address everything that you want to discuss.
It’s also important for mediation participants to remain flexible throughout the process. Remaining flexible does not mean accepting an offer that makes you uncomfortable or going without having your needs met in order to meet the other participant’s needs. Remaining flexible during the mediation process means keeping an open mind, listening when not speaking and maintaining a willingness to communicate. The mediator may try several different approaches to facilitating the conversation, so that if the conversation is not moving forward, the mediator can help get the participants “unstuck”. Some mediator approaches and techniques include creating an agenda for the mediation session based on the mediation participants’ interests, needs or goals, private meetings with each participant to dig deeper in a confidential setting, use of a flipchart to illustrate points, taking a break and so forth. Although mediators do not participate in decision-making, a mediator might direct the participants to try new ways to communicate, such as writing their needs on a piece of paper and exchanging it with the other participant. Mediators have many techniques to get the participants talking – it helps if the participants remain flexible and willing to try. Remember, mediation is a voluntary process, so if you no longer feel comfortable with the mediation, you can end the process at any point.
Do I need an attorney?
You might need an attorney. Your legal rights could be (and probably are) at stake in a mediation session. If you’re not certain whether you need an attorney, it is best to talk with an attorney about your situation, or talk to a trusted family member or friend about whether attending mediation with an attorney would be best for you.
What questions should I ask before I hire a mediator?
You may want to ask questions in addition to those on this list. Do not be afraid to ask a lot of questions; you have the right to interview someone you might hire. The more information you have, the more likely you will feel comfortable with your final choice of mediator. If you are comfortable with the mediator, you are more likely to feel comfortable during the mediation session.
To ensure that the mediator will be neutral and has had some kind of training you can ask:
Do you know the other person involved in this conflict socially, professionally or any other way?
Do you have any financial ties to any of the people involved in the dispute?
Have you ever done mediation for that person?
Have you ever done any other kind of work for the other person?
Would you ever do work for that person after the mediation is over?
Does your employer or organization do any work for the other person?
When did you take your basic course in mediating?
How many matters have you mediated?
How many years have you been mediating?
How has your training and experience prepared you to help us work out an agreement to our dispute?
Do you have other work experience? If yes, what is it? Who do you work for?
Are you licensed in another profession? If so, what profession?
What is the phone number of the Minnesota agency that licensed you?
What is your license number?
Have you ever had a professional license suspended, restricted or taken away? If yes, when and why? Did you get it back? If so, is that license now current and unrestricted?
Has the Supreme Court ever taken any action against you in response to a complaint?
Has any professional organization ever disciplined you? If yes, when, how and why? What is the organization’s name, address and phone number? Do you have a copy of the report? If so, may I have a copy?
Mediators have different styles and practices. You can ask:
Which mediator code of ethics do you follow and will you send me a copy?
Do you schedule the mediation sessions based on my particular situation?
Can you handle any special physical needs I have and how?
How will you handle it if I want to have a support person with me?
How do you conduct mediation sessions?
Do you give an orientation and what does it include?
Do we sign an agreement to mediate and if so, can I have a copy before mediation?
Do you encourage parties to talk directly with one another?
Do you keep us in separate rooms?
Do you ever talk separately with either person in a private meeting during mediation? If so, why and how?
How do you decide when to talk separately with each person?
Do you write up mediated agreements? If so, can I see a sample of one you have done before I hire you?
If you do not write up mediated agreements, how do I go about getting my agreement written?
In the event that the mediation programs are sponsored by a community of faith or are community based, you may want to ask:
How long has your program been mediating?
How many mediation cases has your program done?
How long have you been in operation?
How will you choose a mediator for my case?
Do your mediators work in pairs?
How are the mediators supervised?
Do your mediators charge or are they volunteers?
What training and experience does the mediator have who will take my case?
How do you select mediators for your program?
Are your mediators on the Minnesota Statewide ADR Rule 114 Neutrals Roster?
Do you have insurance for your mediators and if so, in what amounts?
Find a Mediator
Find an attorney
State and Local Government Resources
Family Mediation Resources
Minnesota Office of the Revisor of Statutes
Please contact Mediation Center at firstname.lastname@example.org or 612-216-5171 if you have any questions regarding these resources.