Mediation Basics

WHY?

An opportunity to participate in the process….

In contrast to court, where you won’t get to talk to each other, the mediation process offers both the setting and the support you may need to solve the dispute together. This is critical because this is the time when parties often are avoiding each other, have stopped talking, or may not want to share information. Unlike a judge or an arbitrator, whose decisions subject one party to win and the other party to lose, mediation is about finding a solution that works for both parties. There are no winners or losers in mediation because it isn't a game or a fight. It is a conversation. A cornerstone of the process is that those involved retain complete control over their issues rather than give the issues over to third parties, such as judges or divorce lawyers. These differences from traditional family law litigation are what often draw people to mediation, since keeping control of these very personal and emotional issues can be so crucial to those involved.

You are more likely to keep your agreement.

Since it’s the solution you both have come up with, you each have ownership of it. People are more invested in keeping and honoring an agreement that they created themselves.

You are setting the precedent for the future.

The way in which the parties respect this current process will hopefully set the precedent for any potential future interactions that may arise.

You save time, money and emotional strain.

When both parties agree to work together, the costs — including time, money and emotions — are considerably less than a typical contested divorce. Many divorces can go on for years. Prolonged divorces deplete assets, entail expensive professional services, interrupt business and families, interfere with opportunities for personal growth and go against the desire of everyone to move on with life. Divorce mediation by contrast helps people move towards closure.

People like that the process is…..

• Voluntary — participation is freely chosen and can be terminated at any time by any participant.
• Self-determined — decision-making authority always rests with the individuals.
• Impartially led — mediators are neutral in facilitating conversation; any mediator's prior personal or professional relationship with either party must be specifically disclosed and accepted.
• Confidential — information related to the content and process of mediation is kept confidential, except as required by law.
• Based on Informed Consent — both parties understand the nature of the process and the implications of their decisions.

HOW?

Mediation is most successful when our clients are encouraged to communicate directly, honestly and transparently about each of their respective goals and interests, rather than their positions.

• Each party speaks for his or herself in a manner that is respectful of the other.
• The parties participate and negotiate in a way that is representative of what their future working relationship will be like once their divorce is finalized.

During the course of the mediation process, mediators have three kinds of responsibilities:

• Procedural — We keep track of the process and content of decision-making as well as the goals and objectives of the parties, and we maintain notes that become the foundation of a written agreement.
• Facilitative — We keep the process moving by opening channels of communication and keeping them open. We help you steer clear of relational triggers and productivity derailers and help to maintain your focus on your interests and options.
• Substantive — We can offer information, suggestions and brainstorming ideas, working with you to construct solutions based on your needs. Mediators do not give advice, therapy or counseling.

When clients are engaged in the process, they find that with support, assistance and facilitation skills, most often they can navigate this process to a successful resolution.

WHERE?

Contrary to a court proceeding, mediation can happen in any available office space.

For the mediator to maintain neutrality, uphold your privacy and comply with confidentiality laws, mediation is not done in public settings or in the home of the parties.

WHEN?

In mediation, contrary to a litigated divorce, the clients determine the timetable. The more willing the parties are to move the process along and reach resolution, the faster the process happens. Without the obstacles inherent in litigated divorce, mediation cases often proceed and are resolved in a shorter amount of time and with fewer road blocks.

FREQUENTLY ASKED

What type of complimentary skills and traits make for effective mediators? 

Although the mediation process is largely handled out of court, many of the issues involved in family disputes are of a legal and business nature.  Additionally, and somewhat unique to issues involving the family, they can be highly charged emotionally and often very personal.  Sometimes, the parties are best served by a co-mediation team. For a mediator team to be fully effective, the mediators would therefore be experienced in areas relating to law, business, and mental health, as well as in areas focused on the emotional well-being of all those involved, including children and other family members.

Is mediation confidential?  

Mediation is both confidential and private.  

Do people using mediation have lawyers?  

Typically, mediators recommend that those going through the process each be represented by his/her own lawyer. There likely will be various legal issues that present during the mediation process and even though a mediator may be an attorney, he/she is not serving as an attorney during the mediation process and does not represent any party’s interests.

Who attends the mediation sessions? 

Both parties and the mediator are present during the sessions.  Some mediators may, at times, hold sessions with one party individually. Further, there can be times when attorneys and/or financial neutrals — with the approval of all parties and the mediators — will be present. 

Is the length of the mediation process pre-determined, and how often are the sessions?  

The length of the process can vary except in circumstances where a court has ordered a set time frame.  Typically, at the onset of the process and once the issues are laid out, the mediator may be able to offer a prediction regarding how long the mediation may take. However, due to the fact that each set of issues is unique and subject to changing circumstances, estimating can be difficult.  Each session will typically last for approximately two hours. Mediation sessions can be scheduled weekly, monthly or vary depending on the needs and availability of the participants. The entire mediation process can only move as fast as the slowest participant. 

Is mediation less costly than going to court?  

In most cases, mediation can be far less expensive than traditional litigation.  Since the parties retain control over the process, they can more easily monitor both costs and time spent.  Further, the collateral costs associated with the process can be far less than going to court to resolve a dispute or paying two attorneys to process the same information.