Mediation is a confidential and informal negotiation process in which an impartial third party, a mediator, facilitates settlement discussions between disputing parties. Mediation is an excellent opportunity for the parties to resolve all or a portion of the pending issues in the case without the expense of protracted and potentially contentious litigation. During mediation, the parties have control over the process and the ability to discuss issues outside a courtroom and without the potentially harsh interjections of the Judge. It is always better for parties to resolve their own issues if possible than to have a Judge, who has very little knowledge of the issues or the parties, resolve the issues for the parties. While settlement in mediation is voluntary, it is also binding. Mediation can lower the intensity or level of conflict enabling the parties to better communicate and explore options that would resolve their dispute.
Anyone who is involved in a divorce should consider mediation as an option. Mediation can work for almost all couples and has a long list of benefits.
Benefits of Mediation
- Mediation is much less expensive than a court trial or a series of hearings.
- Most mediations end in a settlement of all of the issues in your divorce.
- Mediation is confidential, with no public record of what goes on in your sessions.
- Mediation allows you to arrive at a resolution based on your own ideas of what is fair in your situation, rather than having a solution imposed upon you based on rigid and impersonal legal principles.
- You can still have a lawyer give you legal advice if you wish.
- You and your spouse — not the court — can control the process.
- The mediation process can improve communication between you and your spouse, helping you avoid future conflicts.
The mediation process is entirely voluntary and non-binding. The mediator has no power to render a decision or to force the parties to accept a settlement. Rather, the mediator’s role is to assist the parties in their negotiations by identifying obstacles to settlement and developing strategies for overcoming them.
A mediation session is private and confidential. It is normally held in a private office or meeting room and no public record is made of the proceedings. If no settlement is reached, any statements during the proceedings are inadmissible as evidence in any subsequent litigation.
A mediation session typically starts with a joint meeting of the parties, their attorneys and in some cases, insurance company representatives. The mediator first explains the format and discusses the confidential and non-binding nature of the proceedings. The mediator will then ask the attorneys for each of the parties to make a presentation of their case, identifying the issues in dispute.
Following the joint meeting, the mediator will usually separate the parties and begin meeting with them in a series of private, confidential meetings called “caucuses”. In these caucuses, the mediator works with each of the parties to analyze their case and develop options for settlement. Ordinarily, the mediator will caucus numerous times with both sides until the case either settles or it becomes apparent that settlement will not be reached. The mediator generally doesn’t make recommendations but rather, allows the parties to make their own decisions based on a realistic analysis of their case.
If you would like to learn more about mediation, please contact our firm.