What is Mediation?
Mediation is a process in which divorcing or separating couples meet with an impartial, neutral person who facilitates communications and problem-solving until an agreement is reached. It is a voluntary process that allows parties to craft their own settlement, rather than to advocate against each other and have decisions imposed upon them by a judge or magistrate who probably does not have the time to learn the fine details of the issues at hand. Mediation is less formal than litigation, is more confidential than court proceedings, and is generally more satisfying to the parties because they have created their own solutions.
Often, parties have been arguing for so long that it has become difficult, if not impossible, for them to see a solution. They have become so attached to the black and white perspective of win/lose that they overlook all the shades of gray in between.
Mediation is designed to examine those shades of gray for possible solutions. During mediation, the parties, not the mediator, are the decision-makers. What the mediator does is to help the parties to set an agenda for the mediation, and to identify and explore the many issues which can cause divorce, separation, and child-related cases to be so difficult and emotional.
How Does Mediation Work?
Generally, the mediator will begin by meeting with both parties together to explain the mediation process, establish the ground rules for the session and hear initial statements from each party. This will help to identify the problems and the issues, clarify the needs of the parties, and keep the parties focused on their general interests and needs rather than on any specific agendas they feel attached to.
There might be times during the mediation when the mediator will meet with each party separately. Called a “caucus,” this type of meeting can be used to allow parties to express themselves more openly, explore options they don’t feel comfortable exploring in a joint session, address non-productive behavior, clarify details, or give the parties time to think away from the other party.
Can We Mediate If We Don’t Get Along?
Parties do not have to get along or even be particularly friendly to successfully mediate their issues. The mediator can help diffuse the emotions and anger that are so often associated with relationship, financial, and child-related issues. And because mediation is a voluntary process, it can be discontinued at any time the participants or the mediator feel that the process is unproductive.
Will The Mediator Advise Me About My Legal Rights?
It is important to understand that mediation is not the practice of law. Mediators come from many different backgrounds. Some mediators are attorneys who have special training in mediation. While an attorney mediator might provide general legal information, s/he is acting as a neutral in the mediation process and not as an attorney or legal advisor. The attorney mediator does not:
o represent the mediation participants in their legal action,
o offer legal advice or provide legal counsel to the parties regarding their legal rights and obligations, or
o predict how the court might rule on a specific issue.
Mediation does not eliminate the need for lawyers; it simply changes their role from being an adversary against the other party to being an advisor for each party. Parties are encouraged to at least have the final agreement reviewed by a lawyer and/or financial advisor (for financial agreements) before signing it.
What Are the Advantages Of Mediation?
Mediation often provides a quicker, less expensive, and more satisfying resolution of the financial and child-related issues associated with divorce and separation. Resolving these issues through mediation from the beginning provides the parties with an ongoing foundation for addressing and resolving child-related issues as they arise in the future. When parents resolve issues together and maintain long-term cordial communications, children are often better able to cope with divorce and separation.
Because no one knows the issues in an individual case better than the participants, the parties, themselves, are in the best position to find solutions that best address their interests and needs. Having worked together to craft an agreement that is mutually satisfying, the parties are more likely to comply with the terms of the agreement and less likely to maintain hostile feelings toward each other and the agreement in the future.
© 2008, Mary Wollard, J.D., Family Solutions Center, LLC