WHAT IS MEDIATION? Mediation is a process in which two or more people involved in a dispute come together voluntarily to try to develop a solution to their problem with the help of a neutral third person (or persons), called the mediator. Unlike a judge or an arbitrator, the mediator does not take sides, or make decisions. The mediator, usually trained in conflict resolution, is there to help the disputants evaluate their goals and options in order to formulate their own solution. To achieve the fairest results possible, you both take an active part in your divorce, and turn what could be a battle for control into a search for mutually beneficial solutions.
HOW DOES MEDIATION WORK? Mediation can take place over a series of sessions, but, more often than not, it is scheduled for a continuous amount of time to keep the negotiations going. Sessions are generally held in the privacy of the mediator’s office or an attorney’s office, and begin with all involved signing an agreement that the negotiations will be kept confidential. At the end of a successful mediation, the mediator will prepare a Memorandum or writing expressing the agreements of the parties, on, at least, the issues which were resolved. Any formal agreement will be drafted by your your spouse’s lawyer.
WHAT SHOULD YOU EXPECT FROM THE MEDIATOR? The mediator’s role is to move the parties beyond personality clashes and historic grievances. Only then can the mediator help you improve communication so any future dealings can take place without repeating the difficulties of the past. Mediation is a useful tool because it adds a new dimension to the negotiations. Because the mediator’s purpose is to help guide you to find solutions that you can both agree to, he/she does not have the power to decide your case, or in any other way act as a judge, nor does he/she have a fixed result in mind to urge you toward. The mediator is there to facilitate discussion, and will attempt to help you express yourself as fully as possible. But, the mediator will not advocate one side over the other.
The mediator may offer suggestions on possible resolutions, or help inform you about the law and the legal consequences of the decisions you make. The mediator will not, however, give you legal advice. Because legal advice should only come from your attorney, it is important to have independent counsel to advise you about resolving your dispute.
BENEFITS OF MEDIATION: Mediators can increase the likelihood of a negotiated settlement by bringing the skills, creativity, and influence of trained, impartial third parties to bear on the problem. Perhaps more importantly, frequent mediation can save time and money.
Mediation keeps your options open, and reduces issues of conflict. Although most who begin mediation have a successful conclusion, some do not. If mediation doesn’t work, you can still sue and go to court, or engage in arbitration. Because mediation is totally voluntary, if an impasse occurs, one can still litigate or undertake another dispute resolution process. But even when mediation is not completely successful, you may resolve some areas of dispute, reducing the number of issues left to be determined.
Studies show mediation can increase compliance. Many people resent decisions imposed by others with power – legal or not. It is important to consider that court orders are not self-enforcing. This means that if one party fails to comply with the terms of a court order, the other party must incur the costs of requesting a court to assist in enforcement. The goal of mediation is to reach an agreement that everyone can live with after each of you has had a direct role in negotiating the terms along with a chance to clear the air. Since agreements reached in mediation were brokered and agreed to by both of you, you tend to have both a sense of legal obligation towards the agreements, and have a psychological sense of commitment because they are your own agreements. It is possible that you will find that you are both more likely to follow through in good faith because the agreements were reached voluntarily.