What is Mediation?
According to a Google search, mediation is intervention in a dispute in order to resolve it; arbitration. However, this simple definition often causes confusion. Mediation is NOT arbitration!
Arbitration is the private, judicial determination of a dispute, by an independent third party. Think of it as submitting your case, or arguing your case to an arbitrator rather than a judge.
While mediation and arbitration are both dispute resolution processes, they are very different in practice.
Mediation can be thought of as assisted negotiation. While the mediator helps the parties reach an agreement each is satisfied with, the mediator does not evaluate each side’s view or determine who is right or wrong. A mediator does not determine the terms by which the parties will be held accountable.
Mediation is a voluntary process. Individuals can discontinue the mediation process at any time. Mediation is collaborative in that each party must work together for mediation to be successful and no one party has a better standing or case than the other party.
The mediation process is confidential. The mediator is an impartial, neutral party assisting the parties in coming to a mutual agreement. While the mediator does not offer legal advice, parties can participate in mediation with the assistance of legal counsel or communicate with legal counsel before making a final decision on an agreement.
What Do I Need To Do To Prepare For Mediation?
Understand that mediation is an opportunity. If your dispute goes to trial a judge or jury will ultimately decide how you and the other party will proceed in the future. Mediation gives each party an opportunity to have a combined say in the outcome of their dispute.
All mediation is voluntary. Even if you have been court-ordered to mediation, you are not required to come to a resolution. It is important to look at the mediation process as an opportunity to compromise and have a say in the final agreement moving forward.
As part of our Mediation Packet, we provide a document for you to prepare your ideal outcome, what you can live with, and an absolute “No Resolution” situation. List out your must-haves and things you are willing to entertain to resolve your dispute.
Having an open mind and willingness to listen to other possible resolutions is the key to coming to a solution everyone will be satisfied with.
Understand that mediation is a confidential process. The things you say or do at mediation will not be used in court, except for a few exceptions like an expression of a future criminal act or a lawsuit against the mediator.
Although you cannot guarantee how prepared the other party will be, if at all possible, you may want to suggest open dialogue with the other party before the mediation session.
Why should I use Domestic Relations Mediation?
I look at mediation as a great opportunity for parents! Litigation can result in unhappy parents with an agreement one or both cannot live up to. For individuals with time constraints, changing schedules (I think this describes most people!), and other people in their lives, mediation offers divorcing spouses the opportunity to customize the plans for their future. For people already divorced or never married, you can use mediation to come to agreements with another parent about a variety of issues including but not limited to support, visitation, property division, and the list goes on.
When individuals visualize mediation as a customized agreement as opposed to a cookie-cutter mandate imposed by a third party (the judge), parties start to appreciate the importance of the opportunity being given to them. It is not uncommon that the standard visitation set forth by the state is unrealistic or intrusive in your family’s way of parenting. If the judge is the one making the decisions, you and your family will have to live with the results.
Mediation allows the parties to maintain control over their future, as well as, how they will parent their child or children in the future.
Mediation is also more cost-effective than adversarial litigation. If parents can work together and reach an agreement, the time and money spent on the divorce process is significantly lower.
Mediation can result in less stress and reduce future conflict. Parents that reach a settlement together are more likely to work together later when changes are needed.
Disclaimer: LynMarie Liberty-Ellington is an Attorney and a Certified Mediator. As an attorney, an attorney-client relationship is formed and an attorney works zealously for their client’s rights. A mediator is a neutral party and does not represent either party as an attorney. The information contained in this post is not legal advice and does not create an attorney/client relationship. Any and all website content and/or other print or digital information distributed by LynMarie Liberty-Ellington is for informational purposes only. If you have a legal concern, seek the advice of an attorney licensed to practice law in your jurisdiction.