"Mediation" means a process in which the parties appear before an
impartial third party who has no authority to adjudicate the dispute but
who, through the application of standard mediation techniques generally
accepted within the professional mediation community, assists the parties
in identifying the issues, and then interests, exploring settlement
alternatives, and fashioning the basis of an agreement.
"Family mediation" means
the mediation of disputes in actions for divorce, annulment, establishment
of paternity, child custody or visitation, or child or spousal support.
Mediation programs can be very beneficial to people who are divorcing as
well as to those who have long been divorced but who find themselves in a
dispute in their post-divorce relationship. Not only can it save money but
it promotes positive dispute resolution rather than adversarial
procedures. That being so, it is well worth investigating by any couple
facing divorce, a child custody fight, a visitation dispute or other
Mediation is a process that may help you resolve your case so you can have
an uncontested divorce. Mediation is particularly useful in situations
involving children, since it is in the interests of the children that
their parents "get along" even if they will no longer live together as
husband and wife. In many states all cases that involve contested custody
or visitation matters are referred to mandatory mediation, provided the
parties are represented by an attorney and there is no allegation of
Mediation attempts to change disputes from "win-lose" to "win-win."
Mediation is a non-adversarial process of helping people come to agreement
on issues like parenting arrangements, support of children and spouses and
division of real and personal property. Mediation occurs when a neutral
third-party, who has training in dispute resolution, assists you and your
spouse and helps you resolve the issues that are causing conflict and to
make cooperative, informed decisions.
Mediation can be used to
resolve the entire range of family disputes either before a divorce takes
place in order to consummate a marital settlement agreement, as well as
after the divorce to resolve continuing disputes that might arise under a
marital settlement agreement.
There are professional
mediators who earn their living by providing divorcing couples mediation
services on all issues. These professionals can be invaluable in helping
couples resolve property and support issues but also will assist with
custody and visitation disputes. Divorce attorneys and family counselors
can often refer families to professional family law mediators.
Psychologists, family counselors and social workers may also offer such
In many states the court
shall refer the parents or parties with a legitimate interest to a dispute
resolution evaluation session to be conducted at no cost to the parties.
In assessing the appropriateness of a referral the court shall ascertain
whether there is a history of family abuse.
Mediation should not be
used when there has been evidence of domestic violence or abuse or there
is a great difference in power between the parties. For the mediation
process to work there must be some degree of trust between the parties.
It is advisable to have an attorney in a
private mediation, but it is not required. In a court-referred mediation,
each party must be represented by an attorney. Parties will be advised by
the mediator to seek advice from their attorneys and it is recommended
that an attorney review the final settlement agreement.
Studies show that families that mediate their differences have a
substantially better after-divorce relationship than families
that litigate their differences.
Mediators use a variety of negotiating techniques to help spouses reach a mutually
agreeable solution to their differences. The final decisions are the spouses', not
the mediator's, because both have had a say in how to deal with the issues that are
important to them. In divorce mediation, the couple controls how and when decisions
get made, rather than attorneys and judges.
Mediation is far less expensive. It can save a divorcing couple a lot of money. As you
will see from the brief description of contested divorces below, adversarial trials get
very expensive, what with the cost of attorneys, expert witnesses and time taken away
from more positive pursuits. If you can successfully resolve all of the issues in your
case, ranging from property division, to support, to custody, you will be many dollars
Mediation is faster. In a traditional court setting, trials can stretch for many months or even into years.
One of the advantages of mediation is that it is confidential. The
emotional and perhaps embarrassing issues that are raised in divorce and
child custody difficulties will be kept private, as opposed to a trial
where all of the proceedings are part of the public record. They are also
confidential, meaning that the process doesn't become part of the
public record as does a court tried divorce case. This is especially
important when the mediation concerns children. The adversarial nature of
a divorce trial can severely strain the ability of parents to communicate
with each other and their children. Dealing with custody, visitation and
child support in mediation can often short circuit much of the bitterness
and support positive family interaction. This can really help the children
who usually want a close bond with both their mother and father.
If you don't reach agreement, you can still go to court. You do not give
up your right to litigate your dispute, although it will end up costing
you thousands more in legal fees, and hours of frustration as you lose
control of your dispute by giving it back to the judicial system. What has
occurred in mediation is confidential and is not admissible in court or
through discovery, so you have the luxury of starting fresh as if the
mediation had never taken place. In a court-ordered mediation, the case
will return to the court for a decision by the master or judge if the two
parties cannot come to an agreement.