Mediation is a form of alternative dispute resolution and an extremely effective means of resolving disputes that allows the couple to decide how a divorce or family matter is going to be resolved through the assistance and guidance of a professional divorce mediator. It is an informal meeting outside of court attended by the couple (and attorneys, if represented) for the specific purpose of trying to settle the divorce or family matter in a non-threatening environment.
What is the role of the mediator?
The mediator is a neutral and independent third party, not otherwise involved in the dispute or litigation, hired to help the couples engaged in the divorce process reach a mutually satisfactory comprehensive agreement. The mediator does not take sides in the matter or give legal advice to the divorcing parties. The mediator does not decide the case for the couples; he helps the couples reach their own solution in a fair, comprehensive and reasonable way to both.
What about confidentiality?
With very limited exceptions, what happens at divorce mediation stays at a divorce mediation. The couples cannot tell the judge what happened nor can the divorce mediator be called to testify at trial. This confidentiality allows the couples to speak openly and candidly without fear that something said can be used against them at trial.
How does the divorce mediation process work?
Opening – All parties and attorneys (if the parties are represented) gather together to discuss the process and the positions of the parties. The mediator discusses the mediation process and directs the discussion among the parties. There may be occasions, particularly in divorce or family law matters that are already in serious litigation, where the parties do not get together for an “opening”. The mediator will instead meet with each side individually to discuss the divorce process and determine positions.
Caucus – In a divorce or family matter where the parties are not represented by attorneys, the parties typically remain in the same room with the mediator. This arrangement helps the process of dialog, communication and agreement. (It also takes less time and therefore costs less.) In the event private discussions are necessary, the parties separate into different rooms and the divorce mediator meets with each side privately, going back and forth between the groups discussing issues, gathering information and conveying offers or demands.
Agreement – At the end of the mediation, a written document is prepared for the signature of the parties outlining the terms of the settlement agreed to by the parties. The mediator will assist in the preparation of this document but the terms and agreements are those agreed to by the parties. You should not expect to get everything you want in a settlement, as compromise is necessary to achieve a solution. However, by actively participating in the mediation process solution, you will more likely be able to live with it — certainly more than you would an adverse decision forced upon you by a court.
When is mediation appropriate?
Mediation is appropriate anytime, even in the middle of divorce litigation process.
- Before suit is filed
- Before extensive discovery is undertaken
- When a settlement can accomplish a result unobtainable in litigation
- When the parties want the ability to determine the outcome themselves
- When a earlier determination than going to trial is desired
- When a cheaper alternative than going to trial is desired
- When the parties want a matter to remain private
- When the parties need to resolve a dispute but desire to retain an existing relationship
- When ordered by the court
What are the benefits of mediation?
- Much lower cost than proceeding with attorneys, especially through trial
- An earlier and/or quicker resolution to the matter
- Parties can assess strengths and weaknesses of both sides
- More flexible and creative outcomes
- You control the outcome
- You have a chance to be heard
- You have ownership of your agreement and can be proud of the result
- You save emotional strain
