Mediation is a process for resolving conflict and coming to an agreement where decision-making remains with the parties. A neutral mediator assists parties in arriving at a mutually acceptable agreement. In contrast to an adversarial proceeding, mediation emphasizes cooperative problem solving and addressing the needs of all involved. Mediation can be used for all types of conflict, however it is particularly useful in the context of divorce and family disputes. Here are some reasons why:
It’s less costly. You and your spouse will typically pay one professional who is dedicated to helping you both reach a resolution. You will pay for meetings rather than waiting time at court. You will not pay for the costly drafting of motion papers back and forth and the accompanying court appearances. Lengthy divorce battles and trials have led to the financial ruin of many families. Divorcing families already have enough financial strain. Pay for your child’s college education, not your lawyer’s child.
You control the discussion and the outcome. You choose the topics that you want to discuss and settle. You, not the court, have final say over the terms of your agreement. Important decisions about you and your children are not left in the hands of strangers.
You get more personal attention. The mediation process allows you to speak and be heard. You work directly with your mediator, who will propose and get a consensus on the resolution process, elicit, explore and generate options, help you negotiate, refine decision-making and arrive at a final agreement. Most judges are overworked and understaffed with too many cases. Judges often do not have the time or opportunity to get to know each family and by necessity, must speak to the lawyers more than the people actually going through the divorce.
There is faster resolution. Parties set their own timeframe for resolving issues, without having to wait months for the next court date or for a time when two lawyers and a judge can coordinate their calendars. It is possible to resolve your issues in a few sessions. One of the worst parts of divorce is the anxiety brought about by living with unresolved, lingering issues for a prolonged period and by having to remain attached to someone after you have decided to separate.
There is greater confidentiality. Communications, documents and work notes made or used in mediation are privileged and confidential. Meetings are private and at your mediator’s office (or even held via Skype or conference call). At court, you will argue your case in a public courtroom in front of a judge, officers and court employees as well as other litigants and attorneys. It is dreadful to have your children and problems discussed in a room full of strangers, or in front of people in your community.
There is greater flexibility. Mediators often agree to meet in the evening, or even on weekends. Mediators are more able to work around your family’s busy schedule, as opposed to a court, with its rigid operating hours and overflowing dockets. Mediation can even work when parties desire to mediate their disputes but cannot do so while in the same room. Mediation can be achieved online via Skype or another online service, or via conference call or speaker phone.
It protects children from conflict. Custody trials usually require your children to be interviewed and observed by several experts. Your children may even be required to appear at court. The animosity between parents can increase significantly while embroiled in an adversarial process, which can expose children to increased conflict, verbal attacks and tension, leading to stress, confusion and long-lasting damage. A mediator can help educate parties in a neutral manner and keep the focus on the children’s needs, while engaging parents in a more sensitive and less inflammatory process.
It’s a less adversarial process. A neutral mediator assists parties in arriving at a mutually acceptable agreement, but, in contrast to an adversarial proceeding, mediation emphasizes cooperative problem solving and addressing the needs of all involved. The mediator can help raise points that an attorney would not be free to raise for strategic reasons and he or she may help the parties view issues from a neutral standpoint with a focus on resolving the dispute, rather than validating one party’s position and seeking to “win”. A mediator can minimize side arguments and avoid the adversarial positioning between attorneys, while concentrating everyone’s efforts towards a mutually satisfactory conclusion. Resolve your issues by communicating rather than fighting, working as a team, rather than engaging in battle.
There are more opportunities for a creative, tailored family plan. Mediating parties do not have to work within the confines of the litigation system as far as process or result. Sticking points particular to you can be addressed more in-depth in your mediation session and in your final agreement, which can lead to more effective co-parenting post-divorce.
It allows for greater post-divorce stability. In contrast to the adversarial nature of the traditional litigation system, mediation seeks to improve parties’ understanding of each other and their ability to communicate. In the context of divorcing or separating parents who will need to co-parent for years to come, emerging from a divorce with the ability to communicate effectively and with respect is especially important. You may also return to your same mediator if conflicts arise in the future. Your mediator can help moderate, settle disputes and clarify or modify your agreement as time goes by. Your mediator already knows your agreement, is attuned to your families’ issues and dynamic and can be on standby, able to quickly step in when you need it.
Article By: Sherri Donovan, Esq.