What is mediation?
Mediation is a process whereby the parties control the outcome of their dispute under the guidance of a neutral mediator who guides the process and ensures fully informed decisions. Mediation can be used for any dispute, including one that has involved court action. Any settlement reached through mediation is voluntary. In the absence of a settlement, the parties lose none of their rights to litigate the matter. Either of the parties can terminate mediation at any stage if he or she desires.
In the divorce context, how does private mediation differ from private marriage counseling?
Divorce mediation is a forum that ensures divorcing couples jointly control and determine their divorce agreement. Counseling is a private forum to deal with behavioral issues. Mediators do not provide marriage or personal counseling as part of mediation, though mediators are typically either attorneys or mental health professionals. A counselor-mediator would not serve as both mediator and therapist, nor would an attorney-mediator serve as both mediator and legal advisor/advocate.
Won't the party who is the stronger-willed and the more experienced negotiator be more likely to get his or her way in mediation?
This is probably the greatest myth about divorce mediation! A skilled mediator will not allow an imbalance of power to dominate. As additional safeguards, mediators typically require both parties to have attorneys review the final settlement agreement, and often require the use of other professionals such as appraisers and CPA’s to ensure fully informed decisions and balanced power.
Is mediation less costly and less time consuming than litigation?
Many mediators believe this is the case. It may be risky to make any blanket statements about time and costs. Of course, it is likely that parties making good faith efforts to solve a dispute themselves will benefit financially and emotionally.
In the divorce context, what is mediation's principal advantage over mediation versus litigation?
The primary advantage of mediation versus litigation is control of the outcome by the parties rather than by a court.
Are particular types of disputes best suited to mediation?
Mediation is used to solve all sorts of disputes including personal injury, employment, contracts and others. Mediation is probably most appropriate in cases where the parties will have continuing contact, such as divorces involving children, business relationships and neighborhood disputes.
Are particular types of cases not well suited to mediation?
There are many situations where a self-directed, peaceful solution is impossible. Mediation is voluntary and requires a good faith effort to negotiate. In the divorce context, spousal abuse that is recurring and/or recent may preclude mediation.
What occurs in a mediation session?
Each party is prepared to discuss the facts of the case and what he or she seeks in the settlement agreement. Each party will have the opportunity to speak without interruption and will be expected to make proposals and counter proposals. The method of presentation is informal; court rules of presenting evidence do not apply. Mediation can take place at any location and at any time, and either party may opt out of mediation at any stage. The parties control the outcome; the mediator ensures that the process is fair and that both parties are able to make fully informed decisions.
Is mediation confidential?
All information exchanged is confidential and the sessions are not open to the public.