What You Might Not Know About Mediation

Steering distressed couples and families toward working out their issues in mediation versus the traditional adversarial process reflects the wisdom and experience of the courts and legislature. The collaborative process of mediation eliminates much of the financial and emotional costs of the adversarial process of a traditional divorce. Mediation, on the other hand, allows the parties to enjoy more control over the situation to the benefit of themselves, their families and their futures.

The consumer or divorce mediation client usually (and hopefully) does not have to go through the process of divorce mediation more than once, although child custody and other post-divorce petitions may arise. Generally speaking, most people do not have a mediator like they may “have” an attorney, a physician, a dentist or therapist. So, a little information about mediation before initiating the process may prove helpful. Here are 5 helpful tips:

Tip #1: Mediation is a voluntary process. Although mediation, particularly for those cases involving child custody issues, may be mandated for the initial session(s), participation after the initial session(s) is voluntary. For instance, Illinois mandates 4 hours of mediation only for those cases involving child custody disputes. A session customarily lasts two hours. Also, note that mutual agreements derived through mediation are voluntary and unbinding. Know the law in your state regarding “mandated mediation”. Ask the court, your attorney, and of course your mediator!

2. Mediation is private and confidential. Only those parties directly involved in the mediation, those representing the parties (i.e., their attorneys), the courts and their appointed representatives (e.g., Guardian ad Litem) or any other adjunct professionals (e.g. therapists or financial advisors) have access to any discussions or information presented. Your mediator should ask you to sign a waiver to allow access to your attorney or any other parties not present during mediation. Allowing for limited communication with each person’s respective attorneys during the process can expedite the process and inspires confidence in the ultimate creation of a reasonable and mutually agreed upon resolution. It is a good time to note that mediation does not exclude, but rather encourages representation of an attorney nor does it does not give up your right to go to court. Remember, whatever happens in mediation, stays in mediation. There is no need for anyone to know. So, you are always welcome to go back to court and let the judge decide your fate.

3. Have a mediation agreement and mediation fee agreement. Understanding, in exact terms, the parameters and guidelines of mediation is very important. Also knowing the financial expense that you may incur and how and when payment is expected avoids future misunderstandings between the parties and the mediator. Such miscommunications may lead to conflicts that can only interfere with the goal of coming to an agreement. Discussing these issues up front and clearly is one sign of a good mediator. It’s even better if the mediator sends these forms to you prior to the meeting. Having time prior to your initial appointment to review documents saves you time and subsequent expense.

4. Know your mediator. It’s wise to get a referral for a mediator. Ask others that have had experience with mediators in your area such as, family court judges, family/divorce attorneys, friends or other professionals. You may want to contact the mediator(s) directly before making a commitment. A phone contact can give you a good deal of information regarding their professionalism and style. For instance: Did they return your call quickly? Did they spend time on the phone to answer basic questions? Did they offer to speak with the other party/spouse, and follow through? Did they provide or ask if you would like any informational materials or refer you to a website that would answer any basic questions you may have regarding mediation? These are some initial ways of operating that may indicate that you have a mediator worth considering.

5. What does the mediator do? The mediator acts as a neutral third party that facilitates mediation or what can be referred to as “assisted negotiation”. More specifically, the mediator does not represent either party. Rather, the mediator’s role is to focus on creating a collaborative environment and reach consensus. Typically, this means that the mediator facilitates communication between the parties, helps clarify each party’s interests, and assists the parties in creating reasonable options that lead to resolution. If the parties reach an agreement, the mediator will create a written document (Memorandum of Understanding or MOU) reflecting their resolution. This document is NOT binding, but can be used in court as the basis of an order. It is recommended that the MOU be reviewed by each party’s attorney prior to each person accepting and signing the MOU.

Mediation provides an extraordinary opportunity to determine one’s own solutions at a critical turning point in life. In many cases, mediation can make all the difference in lessening the financial and emotional costs of divorce and shorten the healing time for all those involved.

Having the time to make informed choices and resolve one’s own conflict gives one control and more personal power in a situation that can often feel “out of control”. If children are involved, mediation gets them out of the line of fire. It can be comforting for children to know their parents are trying to work out their disagreements versus simply fighting. Witnessing parents in the service of creating peace contributes to the healing process of the entire family. Lastly, negative feelings frequently motivate the behaviors that may lead to long, ugly court battles.

Although mediation is NOT counseling, this process does allow time for feelings to be heard and understood. Take advantage of the opportunity mediation presents, but with most things in life, it helps to enter the situation well-informed.