WHAT IS MEDIATION?
Family mediation is a procedure designed to assist people who are separating, divorcing, or dealing with matters arising after divorce. This procedure is intended to allow the parties to reach an agreement between themselves—privately, confidentially and informally.
Mediation is for people who want to settle family disputes without destroying whatever is left of their fragile relationships. This may result in a settlement without extensive litigation. A neutral and impartial third party, called a mediator, will use his or her skills to assist the individuals in making their own decisions by providing information necessary to make decisions, clarifying issues, helping explore alternative solutions, and suggesting possible compromises.
Issues mediated may include custody, visitation and child support; alimony or spousal support; and division of assets and liabilities.
GOALS OF MEDIATION
To help the parties reach their own acceptable agreement by fully exploring all choices.
To avoid the need for a court-imposed decision.
To prepare the parties to anticipate, work through, and resolve disagreements that might arise.
ADVANTAGES OF MEDIATION
Provides an opportunity for cooperation between the parties.
Provides the parties with the tools to structure an agreement in their, and their children’s, best interests.
Minimizes the potentially traumatic emotional and psychological effects of the adversarial process.
Helps with the exchange of information, ideas, and alternatives for settlement between the parties.
Provides the opportunity for a resolution which is less expensive and time-consuming than a court trial.
Results in an agreement with which the parties are more likely to comply.
HOW MEDIATION WORKS
The mediation process begins either with a court order or request by the parties. In some contexts such as child custody, the parties must attempt to use mediation to settle issues before a trial can be set. The court may not refer parties to mediation if there is a significant history of spouse abuse or domestic violence that would affect the mediation process.
The mediator, as a neutral and objective participant, plays an active role in the mediation process by assisting individuals affected by the outcome in reaching a settlement.
The mediator’s purpose is to help identify issues, develop bargaining proposals, and conduct negotiations with the goal of coming to a settlement that meets the family’s needs. The mediator clarifies and organizes details, prompts discussion and cooperative communication, and manages conflict.
The parties do not have to reach an agreement on all issues. They may settle some issues and submit others to the court for resolution.
The mediator DOES NOT make any decisions for the parties but helps with the parties’ own decision-making processes. After agreement has been reached, the mediator will draft a memorandum of understanding to be reviewed and approved by the parties and their attorneys.
THE ROLE OF ATTORNEYS
Mediation does not replace an attorney experienced in the area of marital and family law for each party. It is recommended that each party seek independent legal counsel because, although some mediators are attorneys, the mediator is not allowed to give legal advice.
The mediator’s role is neutral and not a substitute for independent legal advice. The mediator does not represent either party, but focuses on helping the parties reach their own agreement. While the decisions reached in mediation are made by the parties, it is important that they be informed decisions.
Attorneys may attend voluntary mediation sessions so that the parties can consult their lawyers during the mediation process. Even if you are attending mediation without your counsel, if both parties have been fully informed by their attorneys of their respective legal rights and obligations, the mediation process can be more productive. Although there is a reason agreements are called “settling,” the fact that you haven’t gotten all that you wanted doesn’t mean you should feel coerced to accept a resolution that truly doesn’t meet your needs or those of your child.
Upon completion of the mediation, the mediator will submit the memorandum of agreement to the parties’ attorneys. If necessary, the attorneys