Mediation is a method of resolving a legal dispute in which a neutral professional assists the parties in settling the dispute. Generally, the parties agree that all pertinent information will be shared between them and that they are seeking a “win-win” solution. In mediation, the parties work directly with each other to resolve the dispute. While the mediator provides assistance, the parties are primarily responsible for information gathering and analysis. The mediator does not represent either party and the parties do not go to court. Typically, the mediation does not include attorneys except in a consulting or reviewing capacity. Mediation can work well for parties who have the ability to communicate their needs directly to the other person and who understand the information being provided.
Mediation often provides a quicker, more cost effective and more satisfactory outcome than litigation. While it may take months, or sometimes years, to resolve a dispute in court, mediation can be paced according to the parties’ needs. Because mediation is voluntary and requires both parties’ agreement to the final resolution, parties are usually more satisfied with the outcome than with a decision made by a third party.
This results in a higher likelihood of compliance with the agreement, since parties are usually more likely to comply with a solution to which they agreed. In addition, parties are able to customize the solution to meet their needs rather than being constrained by the limited options available in court. Finally, parties who mediate are more likely to preserve an amicable relationship in the future, which is particularly important in families with children.
In mediation, the parties generally do not engage in expensive legal procedures to obtain information. The parties rely on each other to act in good faith and produce all necessary information and documents voluntarily and in a timely fashion. Sometimes, the parties will agree to jointly hire an expert to provide them with more in-depth information.
Most commonly, the parties and mediator meet together, at a frequency determined by the parties. The initial meeting(s) include making any necessary interim arrangements regarding the children or finances and exploring what information needs to be gathered. The parties then gather and share information and documents with each other and the mediator. The parties and mediator meet again to brainstorm possible solutions and reach agreements.
During the meetings, one of the mediator=s roles is to facilitate communication between the parties. Sometimes parties have developed negative communication patterns which impede their ability to speak out or hear each other. The mediator works with the parties to ensure that each party is fully informed about the issues and about the interests and needs of the other party. The mediator is also a resource for helping the parties to create options, which may include options not available in the traditional legal system. The mediator may raise issues that haven=t been addressed and may provide information about the court process and the law.
In mediation, both parties must agree to the solution. Neither party is forced to accept a solution that does not meet his or her interests and needs. Both parties understand that the goal is to fashion a solution that comes as close as possible to a “win-win” agreement, while recognizing that they won’t receive everything on their wish list.
The mediator will draft a written settlement document to memorialize the parties’ agreement. Both parties may have the agreement reviewed with a consulting attorney. Once the final form is agreed upon, the mediator or one of the consulting attorneys finishes processing the necessary legal forms to obtain a legal judgment. A court hearing is generally not required.
Mediation works best for parties who wish to settle without going to court and are willing to commit to a good faith effort to do so. Parties to a mediation must be willing and able to openly share all information necessary to resolve the dispute, including their interests and needs.
In mediation, parties maintain control over their decision making, rather than letting a judge decide. Mediation is often also the most cost-effect approach to resolving a family dispute.
In addition to those practical considerations, divorcing spouses often have continuing relationships with each other, as co-parents or through their circle of friends and relatives. Mediation will increase the possibility of maintaining a civil or even cordial relationship with your spouse or partner after the separation.
