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Civil Mediation

What is civil or commercial mediation?

Civil mediation is a process whereby a qualified neutral negotiator/mediator assists people in conflict (i.e., business partners, disputing businesspersons over a contract dispute, vendors, personal injury claimants) resolve their disputes without the expense, conflict escalation and the time of litigation. The participants engage in facilitated negotiation rather than delegate their power to a judge or an arbitrator. In a meeting (or a series of meetings), the participants (and their attorneys, if the parties have counsel) and the mediator do the following:

  1. Identify the issues involved;

  2. Develop communication so that each party understands the other’s position and concerns regarding each of the issues;

  3. Determine alternatives available to resolve the various issues in conflict;

  4. Discuss the options for resolution in light of the interests of each of the participants; and

  5. Work out the terms of an agreement acceptable to all.

  6. Finalize a written agreement to dismiss a court action or file a stipulated judgment.

What a mediator is not

  1. A mediator is not an advocate for any of the parties;

  2. The mediator is not a representative or private counsel for any of the participants;

  3. The mediator is not a judge or arbitrator who will evaluate the information and make a decision for the parties.

  4. The resolution comes from the parties themselves, with the assistance of the mediator. The mediator does not impose a judgment, but helps the parties to craft a resolution by focusing on problem solving, not blame.

What are some common issues?What are some common issues?

  • Alleged wrongful acts

  • Breach of contract

  • Patent/trademark/copyright infringement

  • Confusion of duties or responsibilities

  • Alleged negligence or alleged intentional acts

  • Alleged breach of fiduciary duties

  • Probate disputes

  • Construction disputes

  • Homeowner’s Association conflicts

  • Real Property disputes

Participant’s duties

The mediation process requires that the parties:

  1. Provide full and complete disclosure of all relevant information, such as conversations, written data, contracts, debts, expenses, documentation of agreements, invoices, and all information having to do with the issues in question (only relevant information must be disclosed);

  2. Act in accordance with guidelines/ground rules of mutual respect, honesty and problem-solving techniques explained by the mediator; and

Commit to resolving disputes through the impartial mediation process in order to de-escalate conflict, reduce stress, save embarrassment for all, and settle quickly and satisfactorily without other exorbitant expense.

Role of independent counsel

Mediation does not attempt to deprive the participants of their own attorneys. Each participant is encouraged to communicate with an attorney of his/her own choice if he/she feels it is necessary. An advocate attorney may be consulted at the commencement of mediation, or at any time during the process. The attorney need not be present. Before an agreement is signed, it is strongly recommended that each party review the agreement with the attorney of his/her choice.

Confidentiality agreement

The mediation process is similar to settlement negotiations between parties to a lawsuit. The participants will agree in writing that all communications between themselves and the mediator are confidential, are not admissible in any court of law. Each participant must agree that the mediator shall not be called as a witness in any subsequent legal proceeding. Each participant realizes that if mediation does not solve the entire dispute, they may agree to jointly appoint the mediator as an arbitrator. A party may decide to litigate, although this is rare. If the parties resort to litigation, the information acquired by any of the parties during the mediation process may only be used if it could also be discoverable through litigation or agreed in writing otherwise. A Mediation Confidentiality Agreement is signed pursuant to the Evidence Code.

Voluntary process

Any party may withdraw from the mediation process at any time. The mediator may also terminate mediation if continuation would harm or prejudice any party. If the parties agree to settle some issues, but some remain, the parties may agree to transform the mediator into an arbitrator by way of a stipulation, or they may appoint an arbitrator to settle the outstanding issues. Another option is to utilize the court system to resolve the outstanding issues as a last resort.

Privacy Advantage

With the advent of the information age and the Internet, court records and financial documents introduced into evidence are public record, and may be seen by myriad persons. There is a great advantage to engage in a process that is confidential and provides the privacy in all procedures. Nothing is revealed except what the parties agree to reveal. This protects the parties and their businesses, and future careers.With the advent of the information age and the Internet, court records and financial documents introduced into evidence are public record, and may be seen by myriad persons. There is a great advantage to engage in a process that is confidential and provides the privacy in all procedures. Nothing is revealed except what the parties agree to reveal. This protects the parties and their businesses, and future careers.

Mediator’s Fees

The mediator’s fees are not fixed in terms of a flat fee, because there is no way to know how much time will be required. The parties themselves shall determine the length of time needed. The hours involved will be affected by the complexity of the issues, the degree of cooperation between the participants, and the time involved in securing discovery items. The mediator charges an hourly rate and a deposit fee is required at the time an appointment is set.

The initial retainer is usually paid for by all the parties equally or proportionally as agreed. In cases where all parties are able to share the fees, this will be encouraged by the mediator (normally paid proportionally). The fee issue is also an issue of the mediation and fees may be reimbursed to parties as agreed. If the parties have not settled after the first six hours, the fee-sharing for continuing mediation may be negotiated for future sessions, if needed.

The mediator will prepare a mutually agreeable written agreement, which is presented to all parties for approval once all the issues have been resolved. Whether or not the parties attend mediation with attorneys, the parties are encouraged to review their agreement with counsel prior to a final signing. Often the mediator prepares the agreement with the help of the parties and counsel if they are present.

Conclusion

Our court system is too costly, time-consuming, destructive, and inefficient to resolve disputes quickly. Dragged-out court battled deplete business and personal time and funds. With the utilization of mediation to resolve disputes, astute business people and wise individuals empower themselves to problem-solve conflicts, so that they can devote their energies to positive productivity instead of wasteful adversity. An effective mediator efficiently facilitates the resolutions of disputes. Successful mediation de-escalates conflict, increases trust, saves time, increases morale, and eliminates the high stress and high cost of a court battle. Consider mediation early before the hostility escalates.

Testimonial

"We were referred to Ms Frank through the Orange County Superior Court for our Probate Dispute.   Our family was torn apart after our mother’s death and fighting over the house and some items.   Mari met with us and gave each of us a chance to be heard.  There was a catharsis and we came up with a settlement we could all live with after spending many hours and a fortune with litigation fees.  Mediaiton is a much better way to deal with this. Now our family members can talk to each other."

"We came with our attorneys to  mediation with Ms Frank.  We thought the process would never resolve the lawsuit. My company had a dispute with a vendor.  The other side was very difficult.  The case had been going on for two years- it was ruining my business, costing a fortune, and destroying  my relationship with my wife.  We settled the case in 6 hours- we should have mediated to begin with."

" Our attorney had tried to settle our personal injury case with the other party’s insurance company for over a year.  It was so frustrating.  The Court told us to try and mediate a settlement.  We picked Ms. Frank from the qualified mediators.  During the process we learned that the adjuster was mad because he thought my attorney had not written him before a suit was filed. That was not the case, the prior adjuster didn’t pass on the letter to the new adjuster.  Ms. Frank listened to everyone and figured out that was the underlying problem.  So she  showed a copy of the original  letter to the present adjuster- he apologized and we got a very good settlement within one-half hour after that."

Happy Family

Family Mediation

 

Compassionate approach that empowers you

Ms. Frank’s reassuring, compassionate approach builds trust in her and the process. There is no growth in repressing your feelings. Going through divorce is painful at times, but conflict presents an opportunity for enlightenment, so clients move beyond the anger to arrive at a fair settlement. She demonstrates her commitment to positive growth by the physically pleasing environment she creates. She guides the parties to explore various solutions to challenging issues. You will be educated – not to overpower the other party, but to empower yourself to ask for what you want in a manner that will influence your spouse to be agreeable.

Protecting your privacy and confidentiality

As author of Safeguard Your Identity, Ms. Frank has a keen consciousness about the need to keep sensitive information out of the public eye. Identity theft is the fastest-growing crime in America. Although you have a fiduciary duty to reveal all financial information during divorce, you shouldn’t have to make your confidential information a public record in court proceedings for the world to see!

What to expect in mediation

  • Initial contact with disputing parties. (Usually one party contacts the mediator, and mediator provides written letter outlining process of mediation to all parties.)

  • Telephone conference with clients (and attorneys, if any) to explain process, and set up appointment, and secure retainer.

  • Opening session-explanation of process.

  • Confidentiality Agreement.

  • Ground rules established my mediator, parties (and counsel of record).

  • Identify problems, issues, and interests.

  • Strategy to guide mediation explained.

  • Gathering of all information and facts to analyze.

  • Define and prioritize issues and set agenda for settlement.

  • Building of trust and cooperation. Expectations exchanged.

  • Plaintiff (complaining party) presents issues, facts, and positions.

  • Defendant presents issues, facts, and positions.

  • Mediator narrows issues with help of parties (Caucus may begin here).

  • Focus on objective criteria and documents.

  • Mediator restates problems in terms of all relevant information and facts.

  • Mediator uncovers hidden interests of disputing parties. (Open session and/or closed session caucusing.)

  • Parties assess options for settlement. (Caucusing may occur at several times.)

  • Final bargaining of each issue.

  • Final settlement negotiations after all issues, resolved, or partial settlement of various issues.

  • Preparation of the agreement together and preparing for all contingencies. (Building in dispute resolution procedures).

Testimonial

"Mari Frank was incredibly supportive to both my wife and me during a difficult time. She knows that law and acts very professionally. She is kind and fair to both parties."

"Mari was highly recommended to us by my mom’s divorce lawyer. She was kind and extremely thorough every step of the way. I mostly appreciate her explaining the process as this was a painful experience and Mari made it as positive as possible!"

"Last year and into the first half of this year, my ex husband and I had Mari mediate our divorce. I found Mari to be consistently professional, knowledgeable, and helpful from the initial 3-way call to the final financial paperwork for the court . She was easy to
reach when a question came up, quick to respond to our emails and phone calls, and compassionate towards us as individuals."

Business Meeting

Work Place Mediation 

 

What is workplace mediation?

Workplace mediation is a process whereby a qualified neutral negotiator/mediator assists people in conflict (i.e., supervisors, employees, colleagues, vendors, partners) to resolve their disputes without the expense and the time of litigation. The participants engage in facilitated negotiation rather than delegate their power to a judge or an arbitrator. In a meeting (or a series of meetings), the participants (and their attorneys, if the parties have counsel) and the mediator do the following:

  1. Identify the issues involved;

  2. Develop communication so that each party understands the other's position and concerns regarding each of the issues;

  3. Determine alternatives available to resolve the various issues in conflict;

  4. Discuss the options for resolution in light of the interests of each of the participants; and

  5. Work out the terms of an agreement acceptable to all.

  6. What is workplace mediation?

  7. Workplace mediation is a process whereby a qualified neutral negotiator/mediator assists people in conflict (i.e., supervisors, employees, colleagues, vendors, partners) to resolve their disputes without the expense and the time of litigation. The participants engage in facilitated negotiation rather than delegate their power to a judge or an arbitrator. In a meeting (or a series of meetings), the participants (and their attorneys, if the parties have counsel) and the mediator do the following:

  8. Identify the issues involved;

  9. Develop communication so that each party understands the other's position and concerns regarding each of the issues;

  10. Determine alternatives available to resolve the various issues in conflict;

  11. Discuss the options for resolution in light of the interests of each of the participants; and

  12. Work out the terms of an agreement acceptable to all.

What a mediator is not..

  1. A mediator is not an advocate for any of the parties;

  2. The mediator is not a representative or private counsel for any of the participants;

  3. The mediator is not a judge or arbitrator who will evaluate the information and make a decision for the parties.

The resolution comes from the parties themselves, with the assistance of the mediator. The mediator does not impose a judgment, but helps the parties to craft a resolution.

What are some common issues in workplace disputes?

  1. Title VII concerns/age discrimination/sexual harassment/gender discrimination, etc.;

  2. Evaluation discord (employer supervisors);

  3. Other types of alleged harassment;

  4. Alleged wrongful demotion/termination or other alleged wrongful acts;

  5. Breach of contract;

  6. Patent/trademark/copyright infringement;

  7. Confusion of duties or responsibilities;

  8. Alleged negligence or alleged intentional acts;

  9. Alleged breach of fiduciary duties.

Participant’s duties

The mediation process requires that the parties:

  1. Provide full and complete disclosure of all relevant information, such as conversations, written data, contracts, debts, expenses, documentation of agreements, invoices, and all information having to do with the issues in question (only relevant information must be disclosed);

  2. Act in accordance with guidelines/ground rules of mutual respect, honesty and problem-solving techniques explained by the mediator; and

  3. Commit to resolving disputes through the impartial mediation process in order to de-escalate conflict, reduce stress, save embarrassment for all, and settle quickly and satisfactorily without other exorbitant expense.

  4. The mediation process requires that the parties:

  5. Provide full and complete disclosure of all relevant information, such as conversations, written data, contracts, debts, expenses, documentation of agreements, invoices, and all information having to do with the issues in question (only relevant information must be disclosed);

  6. Act in accordance with guidelines/ground rules of mutual respect, honesty and problem-solving techniques explained by the mediator; and

  7. Commit to resolving disputes through the impartial mediation process in order to de-escalate conflict, reduce stress, save embarrassment for all, and settle quickly and satisfactorily without other exorbitant expense.

Role of independent counsel

Mediation does not attempt to deprive the participants of their own attorneys. Each participant is encouraged to communicate with an attorney of his/her own choice if he/she feels it is necessary. An advocate attorney may be consulted at the commencement of mediation, or at any time during the process. The attorney need not be present. Before an agreement is signed, it is strongly recommended that each party review the agreement with the attorney of his/her choice.

Confidentiality agreement

The mediation process is similar to settlement negotiations between parties to a lawsuit. The participants will agree in writing that all communications between themselves and the mediator are confidential, and are not admissible in any court of law. Each participant must agree that the mediator shall not be called as a witness in any subsequent legal proceeding. Each participant realizes that if mediation does not solve the entire dispute, they may agree to jointly appoint the mediator as an arbitrator. A party may decide to litigate, although this is rare. If the parties resort to litigation, the information acquired by any of the parties during the mediation process may only be used if it could also be discoverable through litigation. A Mediation Confidentiality Agreement is signed pursuant to the Evidence Code.

Privacy advantage

With the advent of the information age and the Internet, court records and financial documents introduced into evidence are public record, and may be seen by myriad persons. There is a great advantage to engage in a process that is confidential and provides the privacy in all procedures. Nothing is revealed except what the parties agree to reveal. This protects the parties and their businesses, and future careers.

Mediator’s fees

The mediator's fees are not fixed in terms of a flat fee, because there is no way to know how much time will be required. The parties themselves shall determine the length of time needed. The hours involved will be affected by the complexity of the issues, the degree of cooperation between the participants, and the time involved in securing discovery items. The mediator charges an hourly rate and a deposit fee is required at the time an appointment is set.

The initial retainer is usually paid for by the company. In cases where all parties are able to share the fees, this will be encouraged by the mediator (normally paid proportionally). If the parties have not settled after the first five hours, the fee-sharing for continuing mediation may be negotiated for future sessions, if needed.

The mediator proposes a mutually agreeable written agreement, which is presented to all parties for approval once all the issues have been resolved. Whether or not the parties attend mediation with attorneys, the parties are encouraged to review their agreement prior to a final signing. Often the mediator proposes the agreement with the help of the parties and counsel.

Conclusion

Our court system is too costly, time-consuming, destructive, and inefficient to resolve disputes quickly. Dragged-out court battled deplete business time and funds. With the utilization of mediation to resolve disputes, astute business people empower themselves to problem-solve conflicts, so that they can devote their energies to positive productivity and profit in the workplace.

An effective mediator efficiently facilitates the resolutions of disputes. Successful mediation de-escalates conflict, increases trust, saves time, increases morale, and eliminates the high stress and high cost of a court battle.

Consider mediation early before the hostility escalates.

Testimonial

"Mari expertly and quickly used her negotiation skills to  resolve a landlord dispute  that  I had been grappling with for many months.  She obtained all the documentation and was able to get us reimbursement for the lodging, meals and sundry expenses.  During the process she approached the issue with a spirit of civility, through correspondence and constant follow-up.   I was so grateful we found her."

"I hired Mari to help me resolve a dispute with someone who breached a contract and owed me money. I had been trying on my own for a year to achieve a resolution, but to no avail. After hiring Mari, the whole matter was resolved in less than a month. And I  actually got paid. I cannot thank Mari enough for using her amazing negotiation skills to resolve this matter quickly, effectively, and successfully."

"I needed help negotiating a financial settlement with my employer. She provided negotiation coaching and helped me attain a written agreement with my former employer.   Not only did I receive a very generous severance pay, but I also received a  great  recommendation to use with future employers. I appreciated her professionalism, expertise, and genuine caring manner."

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