The common thread for mediators, however, is that all mediators are neutral parties. They cannot take sides, nor offer advice. A mediator's sole role at the mediation is to facilitate understanding and a resolution of the dispute in terms which all participants can agree on.
A mediator, therefore, works toward dispute resolution rather than directly for either party. Mediators can often help parties to ease tension and increase the effectiveness of their communication. The role of the mediator is to encourage direct participation of the parties by empowering them to discuss conflict.
The mediator can help the parties themselves find a solution which is mutually beneficial. Because the process of mediation is voluntary, every participant should be satisfied with the result.
Mediators for the Dispute Resolution Program of the County of Santa Clara have completed a minimum of 40 hours of intensive training in mediation communication, cultural skills sensitivity, and facilitation.
Additionally, many mediators for the Program have undergone hours of skills enhancement courses which are directly tailored to specific types of conflict.
All volunteer mediators for the Program serve as professionals in other capacities; some are psychologists, attorneys, accountants, mothers, teachers, and businesspeople, just to name a few.
2. Is there a type of case that cannot be mediated?
Because of the variety of disputes, there exists a wide array of methods for coping with differences and with dispute. Generally, as long as there are two or more willing parties to the process who are capable of understanding the nature of the proceedings, mediation may take place. There is no single "type" of disagreement or dispute which cannot be mediated.
Situations that lend themselves well to mediation are certain family disputes, disputes between neighbors, business disagreements, small claims disputes, contract discrepancies, insurance claims, as well as employment and environmental issues.
If gender or cultural difference is making it difficult to resolve issues or conflicts or if there is such a clear inequality in bargaining power so as to make you question whether you could resolve your issues through mediation, talk to someone in the Program about your concerns.
The County of Santa Clara's Dispute Resolution Program is provided on a pro bono (cost free) basis. No fees are charged to any participant needing assistance in the resolution of their dispute. (Please see the CREST Program for more information about services provided for schools.)
In most cases it is not necessary for lawyers to be present during the mediation process. If you have already retained a lawyer, our office will work with you as well as with your attorney in setting up a mediation with the appropriate parties involved.
The mediator is a neutral person trained specifically in facilitating the process of dispute resolution. In their role as mediator, however, professionals cannot give legal advice or any other professional advice. The role of an attorney representing a party in mediation is to provide them legal advice and to advocate for their client. The mediator's role is to assist both parties in working through the issues in the dispute to come to a successful resolution of the dispute. The mediator and lawyer(s) work in concert to ensure that the parties enter into an agreement that is in their best interest and based on informed decision making.
As quickly as possible. The more time which passes in the course of conflict, the more difficult it can be to resolve. Additionally, as time goes by, it may become harder for everyone to agree on a resolution and parties will become more entrenched in positions which state that one is "right" and the other is "wrong."
Even your lawyer, if you have one, may suggest mediation before proceeding to court. The fact of the matter is, mediation is almost always faster and cheaper than litigation. Most court actions do settle before trial, many through the use of mediation.
7. Thinking about the benefits of Mediation, Conciliation, and Facilitation?
Conciliation
An informal process in which a third party neutral (an impartial, unbiased individual trained in dispute resolution) assists in resolution, often without having the parties meet together. Most often, this process is facilitated over the phone.
Flexibility
There is much more room for creativity when you resolve your dispute yourself or with the help of a third party as opposed to having a court tell you how it will be resolved. You can work together to arrive at a resolution which meets all parties' needs.
Control
You will have more control over both the process and the outcome.
Personal Satisfaction
You are more likely to be satisfied because you have made the choices which will effect the outcomes. Similarly, you were a major decision maker within the process, communicating your needs, and reaching your goals. The Parties Control the Outcome and often have a "Win-Win" result as opposed to having the issues in dispute resolved by a judge or jury.
Lower Costs/Less Time
Mediation and conciliation will likely save you both time and money. Even a few hours spent in mediation will cost you nothing through the Dispute Resolution Program, whereas filing a small claims court case will cost you filing fees, time loss from work, and the difficulty of paperwork and logistics. In mediation, you are the most important factor involved, meaning you usually have little or no paperwork to complete.
Confidentiality
Except in cases of suspected or confirmed child or elder abuse (where the duty to report is required by the Child and Family Services Act) the mediation process is confidential; that means, nothing said in preparation for the mediation on the phone, or during the mediation itself can be revealed to anyone unless your express permission is granted.
Getting at the Root of the Problem
Disputes are generally the result of poor communication. Oftentimes, there is an underlying problem beneath the subject of the dispute. Mediation can help the parties to understand the issues which have contributed to the creation of the conflict. With a newfound understanding, the parties can work towards a resolution that is satisfactory to everyone involved.
Maintaining Relationships
Litigation destroys relationships. Communication between parties can both resolve the dispute and maintain your relationship. Mediation with the Dispute Resolution Program encourages people to work together at resolving their disagreements which often results in improved relationships and perhaps in fewer new disputes.
Agreements that Last
Parties are more likely to comply with an agreement that they helped design rather than one that was imposed on them.
Successful mediation depends on the parties' willingness to negotiate in good faith and work out a solution. Before beginning the mediation, it is good to know what your interests are and to think about possible mutually satisfactory solutions. It is good to get legal advice and other professional advice regarding the law, your rights and obligations, the likely litigated outcome in terms of time and money, both before and during the mediation.
Introduction
First, mediators will describe the process and their role. They will discuss the Agreement to Mediate form (called the Statement of Information) which states specifically that the mediator will not give legal advice, the parties should seek the advice of independent counsel, and the process is confidential.
Information Gathering
Mediators will ask each of the parties to describe their view of the dispute and what they may want out of any solution. The parties are given a chance to vent emotions and express views in a safe environment.
Issue Identification
Mediators assist the parties in identifying the main issues in dispute. Mediators will help the parties in understanding each other's interest and needs with respect to each issue.
Generating Solutions Mediators will then encourage the parties to become problem solvers, look objectively at the issues, identify and discuss possible solutions. At times, mediators may use a technique called "caucus" in which they meet with parties separately and in confidence. This can lead to fuller revelation of the parties' needs and development of options for a solution.
Agreement Once the parties have reached an agreement the mediator or the parties' attorneys may record the terms of agreement. If the mediator drafts the agreement, the parties will be encouraged to have an attorney review the agreement prior to signing it. A signed agreement may be enforceable as a contract. If a case is pending in court, it can also be entered as a court order by the judge dismissing the case.
issues in dispute. Mediators will help the parties in understanding each other's interest and needs with respect to each issue.
10. Do I give up my options if I choose mediation?
No. If you choose to participate in the mediation or conciliation process and you have a case filed in court, you may withdraw from the dispute resolution process at any time.
If you are interested in learning about legal principles that pertain to your case, you may consult an attorney before the mediation. However, attorneys are not invited to participate in the mediation process. As an alternative, you may educate yourself on legal principles by consulting various resources that publish explanations of legal concepts for non-lawyers. e.g. www.nolo.com
See the "Additional Resources" section.
3. What types of complaints does the Small Claims Mediation Program NOT handle?
Any of the following types of cases that have NOT been filed in Small Claims Court, even if they involve money. (These types of cases should contact the DRPS Community Mediation Program - See "Contact Us").
Neighbor - Neighbor
Nuisance - e.g. Barking Dogs
District Attorney - related cases - e.g. Temporary Restraining Orders
Juvenile Justice cases in which restitution has not been sought through Small Claims Court.
5. Who is eligible to participate in the DPRS small claims program?
DPRS Small Claims Court Mediation Program can assist anyone who has filed a lawsuit (Plaintiff) in Small Claims Court or has been named the Defendant and served with notice of the complaint.
DRPS Mediators are impartial, neutral, unbiased professionals with no stake in the outcome of the mediation process. Their job is to ensure that the conversation that occurs between the parties is productive and respectful. They guide the parties in a structured discussion about their perspectives in the case so that, rather than dwelling upon the past and the source of the dispute, the mediators focus the parties on moving forward and resolving the issue. If the parties reach an agreement at the conclusion of the mediation, the mediator drafts the terms of the agreement in writing so that the parties may retain a private record of the agreement or may share it with the court, in limited, appropriate circumstances.
DRPS has a staff of and pool of volunteer mediators who have completed, at a minimum, the DRPS 40 Hour-long mediation training course. Many mediators have completed additional hours of mediation and negotiation training through other organizations. DRPS mediators gain practical experience by training with and being guided by seasoned, experienced mediators during mediations for a period of time. Once the training regimen is complete and DRPS is confident of their competence, volunteers mediate as often as their schedules and the DRPS schedule will allow.
Some of our mediators are attorneys. However, during mediation , the job of all mediators, including attorney-mediators, is to remain neutral and to avoid giving advice to participants.
Please block three (3) hours. It is difficult to reconvene the parties prior to the court date if someone has to leave the mediation prematurely. Mediations may take less than three hours.
12. How does the process end if I participate in mediation?
Continuance:
The Plaintiff on behalf of the parties and/ or both parties will appear on the appointed court date to ask the court in its discretion to grant a continuance (a postponement) of the court date until such time that performance of the agreed upon terms can occur (usually not longer than a period of 60 days or 2 months. The $10.00 continuance fee should be waived because you have participated in this program.
Dismissal:
If complete performance of all agreed upon terms occurs before the court date, then it would be appropriate for the Plaintiff to dismiss the case either prior to the court date with the Clerk at the Los Gatos Courthouse or in court on the appointed court date.
"With Prejudice" means that the parties agree that the issue has been decided and should be closed; that the case file number should be administratively closed; and that because the issue has been decided, that the Plaintiff may NOT sue on this same issue again.
Plaintiff on behalf of the parties and/ or both parties will appear on the appointed court date to ask the court in its discretion to grant a continuance (a postponement) of the court date until such time that performance of the agreed upon terms can occur (usually not longer than a period of 60 days or 2 months. The $10.00 continuance fee should be waived because you have participated in this program.
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