What Happens During the Consultation with a Mediator?

Rincker Law Alternative Dispute Resolution Leave a Comment


Initial Contact.  Typically, one person calls the mediator at first and requests a telephonic or in-person consultation.  If the initial consultation is given to only one party, then in efforts to stay neutral, private time with the mediator is also offered to the other person. Some mediators choose to charge for the initial consultation.

Confidentiality Agreement.  During this stage, a “Confidentiality Agreement” is signed noting that everything discussed in the consultation and any subsequent mediation session will be confidential.  Not only will the information not be disclosed to third parties, but neither party may use the information discovered through mediation in court.

Fees. Fees are discussed during the consultation. Typically, mediators charge by the hour although some mediators charge a flat fee per mediation session.  The issue of who is paying what portion of the mediation fees can be a contested issue which may be mediated. The parties should decide on how the initial session will be paid prior to scheduling a session.  In many cases, parties to a dispute split the costs of mediation equally; however, in the family law context, parties often split the costs of mediation on a pro rata basis according to income.

Engagement Letter or Retainer Agreement.  Many but not all mediators have the parties sign an engagement letter, retainer agreement, or mediation agreement setting forth payment terms and the responsibilities of each parties according to the rules of ethics in that state. Fees should be clarified in the retainer agreement or engagement letter between the mediator and the parties. The parties may opt to sign the engagement letter in the initial consultation. Depending on the type of dispute, some mediators request an up-front retainer be paid as payment security.


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