Mediation & Arbitration - Mediation
Mediation can be an excellent alternative to litigation. In mediation,
the parties meet with a third-party neutral, often an attorney or
psychologist, who helps them negotiate an acceptable solution. Unlike
an arbitrator, the mediator is not authorized to make decisions
about the dispute; rather, he or she simply facilitates communication
between the parties, helps them think of solutions, and suggests
options for resolution. The resolution is often based on what other
couples have done in similar circumstances, or what the judge may
decide, should the parties take their case to court.
Courts often order divorcing couples to go to mediation. However,
the parties may also decide to use mediation themselves without
being ordered. Many courts provide mediators, or there are mediators
in private practice. Because there is direct communication between
the parties, the process is often quicker and less expensive than
relying on the court or the attorneys to work out a resolution.
Also, if the parties are able to negotiate their own agreement,
they are often more satisfied with the results than if the court
In mediation, the parties are free to decide how the process will
work. They can meet together or do their negotiating from different
rooms, even different cities, for example, in a conference call.
The process lasts only so long as the parties believe it is useful.
If either party is uncomfortable with the way the mediation is going,
he or she can end the mediation.
There is a limited but important element of confidentiality in
mediation. Neither party can disclose to the court what is said
in mediation. This protection is there to assure the parties that
they may be creative in mediation, brainstorm, or suggest possible
solutions, without being concerned that what they say will be used
Because the parties control mediation, it is often a better process
for resolving disputes about families than going to court. Especially
where there are children, it is often beneficial for the parents
to resolve issues concerning their children between themselves,
rather than leaving it up to a judge. Parents are usually better
equipped to make decisions about their children, and mediation often
makes it possible to make those decisions, even where the parents
are having difficulty communicating.
Most good family lawyers support and encourage the use of mediation.
In fact, you should think about mediation as a supplement to good
legal advice. You can often meet with your lawyer to help you prepare
for mediation and to gather the necessary documents. Finally, your
lawyer can help you review the legal ramifications of any agreements
you reach in mediation. That way, you can best protect yourself
and your children.
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