|What is mediation?
Mediation is a process of resolving conflicts with the assistance of a mediator, who serves as a facilitator of communication between the parties and who offers a voice of compromise, peace, and resolution. In mediation, the parties devote concentrated time – usually meeting in the same room, but sometimes in separate rooms – discussing the issues that are at stake in the conflict, and working together to forge a resolution that best meets the needs of all parties. The process is informal, confidential, and supportive, and allows an open discussion of all issues and all concerns. While legal claims are often central to the dispute, the resolution need not be based upon the strengths or weakness of any party’s legal position or a presumed legal outcome. If an agreement in principle is reached between the parties, the terms are documented in a written settlement agreement, which becomes a binding contract between the parties when it is signed.
What happens in mediation?
The first step involves setting up the mediation. This process is typically handled by a series of telephone conferences or emails, where issues of scheduling, preparation, attendance, and other protocols are addressed. In some situations interim agreements are reached regarding the exchange of information or, when property is involved, obtaining an appraisal. The parties will also need to decide whether or not to bring their attorneys to the mediation session, if they are working with attorneys. In some situations a series of shorter sessions makes most sense, whereas in other situations it is preferable to devote an entire day to the process.
The mediation typically commences with all parties (and their attorneys, if they are participating) meeting together to review the key issues and discuss openly the needs and concerns of the parties. In some mediations everyone stays in the same room throughout the mediation; in other situations, it makes more sense for the parties to spend time in separate rooms, with the mediator shuttling between the rooms using a caucus format. Some mediations involve a detailed discussion of the underlying factual contentions, and in others the focus is entirely on developing acceptable solutions. In some conflicts the legal obligations and claims and possible court outcomes form the core of the discussion; in other situations, legal positions are less central.
Once an agreement is reached in principle, the mediator (or one of the attorneys) will draft a written settlement agreement. Sometimes this is done partially in advance, sometimes at the end of the session, and sometimes a few days afterwards. If the parties are ready to sign an agreement at the mediation, this can be accomplished; other times it is preferable to prepare the written agreement later on, and have it signed a few days later. If there are subsequent disputes about the language of the agreement, the mediator will engage in a series of phone conversations or a conference call to resolve these remaining disputes.
The last step of the settlement process involves setting up the mechanisms for implementing the agreement. In some situations this is done through a court process, and in other situations the parties handle the implementation tasks on their own. Where appropriate, customized mechanisms for addressing later conflicts or disputes about implementation can be included in the settlement agreement.
What does the mediator do?
The mediator asks questions, expresses concerns, probes deeper so as to understand everyone’s concerns, facilitates communications between the parties, and helps everyone understand and then reflect on the dispute so as to explore and evaluate appropriate solutions to the conflict. The mediator sometimes expresses opinions, if the parties ask the mediator to do so, but the mediator does not render any judgments or make any “orders.” The mediator is not a judge or a jury, and no one “wins” or “loses” in a mediation. Rather, the mediator is there to shed light on the dispute, help clear up communication blockages, propose solutions, and facilitate the conversation.
While the mediator is not the lawyer for either party, the mediator can help the parties identify and sort through legal issues, and can help the parties evaluate the legal strengths and weaknesses of their situation. Where appropriate, if the parties are not represented by counsel or have not consulted with an attorney, the mediator may recommend that one or both parties meet with an attorney before finalizing an agreement. If tax or other financial issues are pertinent to the dispute, the mediator also may recommend that the parties consult with an expert in these areas.
The mediator is not a therapist or psychiatrist, even though many emotional issues may arise during a mediation. The mediator must be sensitive to these emotional issues, and will be open to talking through the issues and exploring their relevance to the immediate dispute. If the parties elect to focus more thoroughly on the emotional dynamics of the dispute, it may be appropriate to suspend the mediation to allow this to happen with an appropriate counselor.
Why does mediation work?
Mediation works primarily because it encourages an open discussion of all issues in a safe non-confrontational setting, where the parties are able to hear each other, communicate their interests and not just their positions, and work collaboratively to resolve their conflicts. This is so even where the conversations are mostly between the attorneys, rather than the parties directly. It requires an open mind, a willingness to compromise, and an understanding that crafting a solution jointly is far better than letting a judge or jury impose a solution.
Sometimes it works because the parties realize that fighting in court will only cost them a lot of money and may not bring a just result. Sometimes it works because the attorneys are able to persuade the other side of the validity of some or all of their positions. Sometimes it works because the parties finally understand what they each want most out of the situation. Sometimes it works because the mediator is able to suggest solutions that no one else has proposed. And sometimes it works simply because there is a spirit of resolution in the room, which induces everyone to be their best self and stretch to find a way to resolve the conflict.
What is unique about Frederick Hertz's approach to mediation?
Frederick Hertz has worked as an attorney for more than twenty-five years. His specialization for the past fifteen years has been the co-ownership of property and assets by couples, family members, business partners and friends. He has worked with groups to draft co-ownership agreements at the outset of their relationship, and he has served as a litigator representing partners in the dissolution of their family and friendship relationships. He has served as a trial attorney in the nastiest of such disputes, and he has served as a mediator in the most conciliatory of conflicts.
Through this extensive experience, Frederick Hertz has come to understand the complex interplay of emotional and practical dynamics that arise in any dissolution or partnership breakup, business dispute, construction conflict, or financial dispute.. He understands that while the presenting issues may involve money and property, there is always a deeper background of mistrust, disappointment, resentment, and sadness about the end of a personal or business relationship. So often the very asset being disputed was acquired only because of the love and trust that once existed – whether in a love relationship or a family or business partnership – and now, that emotional connection has gone awry. While mediating these disputes is not a theraputic resolution of the underlying conflicts, resolving these matters requires a sensitivity to these issues.
Frederick Hertz also has a broad background in real estate and asset management, including a working knowledge of loan protocols, appraisal issues, titling, and taxation components, and the legal interpretation of deeds, contracts, and public approval decisions. He also has an extensive background in real estate development and planning approvals, as well as the construction and real estate brokerage industries. This knowledge enables him to focus in detail on the particular real estate, construction, or financial dispute, and provides a practical background that ensures that the key issues will be fully addressed.
Mr. Hertz is also open to a variety of mediation methods and procedures. He works with parties who are attempting to resolve their conflicts without lawyers, as well as those who are represented by counsel. In some situations the communication is primarily between the parties directly, whereas in others attorneys manage the communication. He is flexible in scheduling the mediation sessions, and does not impose an administrative fee on the parties. Generally there is no penalty for cancellation and parties are only charged for the time he devotes to their matter. Mr. Hertz has offices in downtown Oakland, easily accessible by BART, and offers evening and weekend sessions on a limited basis. His current hourly rate is $340, and payment for the mediation services is typically required in advance of each session. The parties are free to allocate the fee obligation between themselves as they deem appropriate.
How do I intitiate a mediation session with Frederick Hertz?
To schedule a mediation session with Frederick Hertz, please contact him directly at 510-834-4114, or at Fred@Frederickhertz.com. He will need to know the names of all the parties and a brief description of the type of dispute, and the names of the parties’ consulting attorneys, if any have been retained. If the parties are represented by attorneys, either attorney may contact him to set up the mediation process.