The Mediation Process
Mediation is a process in which an independent, neutral, impartial individual (the Mediator) assists opposing parties to achieve an amicable settlement of the contested issues. The Mediator does not make any decisions for the parties; the decision to settle lies solely within the parties’ control. The Mediator does not give legal advice to either side, even if the Mediator is an attorney. The Mediator’s role is to facilitate the negotiation process by assisting in communication between the parties, identifying the issues, exploring alternatives, and preparing a formal document to memorialize agreements.
Mediation has been generally encouraged by the Courts before a final hearing/trial will be conducted, and now it is more often mandatory. Mediation has several advantages for the parties, including:
- It is private and confidential: All discussions and settlement offers during the mediation session are privileged and confidential. This means than they cannot be disclosed in court to the Judge, and they are not to be discussed with any non-participants (friends, family, etc.). The discussions during mediation are to be shared only between the participants, their attorneys, and the mediator. Exceptions to confidentiality are very limited, usually being restricted to such as an unreported child or senior abuse or intent to commit a crime.
- You are in control: It is strictly your decision whether to accept a settlement offer or not. Neither a Judge nor attorney can make this decision for you.
- Mediation provides flexibility in the outcome: If a case is decided by a Judge, the Judge must base the decision upon the applicable law and the evidence presented in court. The judge has some discretion, but that discretion is limited to that allowed by statutes and case law, even if a different decision may be in the best interests of the family involved. A judge does not know the background or needs of your family, except as presented in a possibly brief hearing. Improper or ineffective presentation of evidence, leading to a misunderstanding of a key fact by the judge, may prevent a “correct” decision. With mediation, you have the ability to achieve a settlement that is in your family’s best interests but which may not be possible, based upon legal restrictions, with a contested trial.
- Mediation provides finality and certainty: A successful mediation may resolve all or some of the issues but the result, unless the mediation is specifically directed to address a temporary situation, is usually a final settlement of the issues, with nothing left to chance. Although neither party may be totally satisfied with their agreement due to the give-and-take that occurs during negotiation, both will leave mediation with the knowledge of the outcome, not having to be concerned about someone else deciding and dictating some of the most importantt decisions of their lives.
- It is cost-effective: Especially if attorneys are involved, successful mediation will usually be less expensive and time consuming than a full-blown trial of all issues due to the reduction in preparation time, less necessary discovery, and fewer court appearances.
- It may avoid court: Contested trials, in addition to being expensive, are emotional and usually detrimental to all involved, especially children. Successful mediation will reduce the conflict and stress and may, depending upon the issues, even avoid the necessity of one or both of the parties attending a hearing.
Mediation provides the parties a means to act in the best interests of themselves, their children, and the family unit (which will continue to exist in some form, despite divorce or separation), to bring a known finality to their current disputes. Mediation provides an economical and efficient path to resolution that may not be possible through litigation, all with a reduction of the emotional stress associated with court appearances. Through mediation, the parties, not the court, make the decision. And, generally speaking, most parties are more satisfied, and more likely to follow, an order that is based upon their agreement than an order that is forced upon them after contentious litigation, thereby reducing future conflict.