How does Mediation Work?
In a confidential setting, the mediator helps each party to communicate what is important to him or her and to hear what is important to the other party. With help from the mediator, the parties:
- identify the issues that need to be resolved;
- prioritize the issues and focus on one at a time;
- discuss possible solutions;
- come to agreement about parenting plans and/or financial or other issues;
- have a draft prepared of their emerging agreement; and
- review, revise, and prepare the agreement for signing.
What is the Process of Mediation?
Most mediators are trained in some type of conflict resolution and in general, follow a six-stage model for mediation sessions. Here are the stages of mediation:
Stage 1: Mediator’s Opening Statement. After everyone is seated, the mediator introduces everyone, explains the goals and rules of the mediation, and encourages each side to work cooperatively toward a settlement.
Stage 2: Clients Opening Statements. Each party is invited to describe, in his or her own words, what the dispute is about, how he or she has been affected by it, and to present some general ideas about resolving it. While one person is speaking, the other is encouraged not to interrupt and to practice good listening skills.
Stage 3: Joint Discussion. The mediator may try to get the parties talking directly about what was said in the opening statements. This is the time to determine what issues need to be addressed and in what order they would like to address those issues.
Stage 4: Private Meetings. Sometimes a private meeting is used as a chance for each party to meet privately with the mediator (usually in a nearby room) to discuss the strengths and weaknesses of his or her position and for settlement. The mediator may meet privately with each side just once or several times, as needed.
Stage 5: Joint Negotiation. After private meetings, the mediator will usually bring the parties back together to negotiate directly.
Stage 6: Closure. This is the end of the mediation. If an agreement has been reached, the mediator or attorneys (if present) puts its provisions in writing. Each point of the agreement is reviewed and discussed. Consequences of each decision are weighed. The mediator may ask each side to sign the written agreement or suggest they take it to lawyers for review before signing. If the parties want, they can write up and sign a legally binding contract at the end of the mediation session(s). If no agreement was reached, the mediator will review whatever progress has been made and advise each party of their options, such as meeting again later, going to arbitration, or going to court.
DO I NEED AN ATTORNEY?
CAN A MEDIATOR GIVE LEGAL ADVICE?
While some mediators may have a legal background and others have backgrounds in other professional areas such as family counseling, as mediators we are in a unique role that does not involve representing or advocating for either party—in essence, we are neutral to both parties. Mediators can give you information about state laws and local court procedures and can tell you about other resources available, but we do not give legal advice. That is, we do not interpret statutes or advise about or recommend any specific legal action that would benefit either party over the other.
IF I ALREADY HAVE AN ATTORNEY, IS IT TOO LATE TO TRY MEDIATION?
Mediation is still available. You can keep or hire an attorney to give you advice and then do most of the negotiation work yourself at a much lower cost in mediation. You can even retain an attorney to represent you in court and still do much of the negotiating yourself, with help from a mediator. That can be better than paying two lawyers to negotiate with each other on behalf of the two parties. Many attorneys are happy to have their clients work with mediators to resolve most or all of the issues outside of court.
IS A MEDIATION AGREEMENT LEGALLY BINDING?
A mediation agreement signed at the end of a mediation is a binding legal contract between parties and therefore can be enforceable in court. It is usually used as the basis of your preparing (or an attorney preparing) and finalizing an agreed decree of divorce.
Remember, not all successful mediation leads to a signed mediation agreement. Sometimes a mediation agreement is reached but the parties defer signing a mediation agreement at mediation. Instead, they take their agreement to an attorney to write up an agreed decree of divorce.
IF I ALREADY HAVE AN ATTORNEY?
If you are already in the middle of a court case and have been court mandated to mediate, it is likely, that both parties attorneys will want to be present during mediation to assure that your interests are protected.
ADVANTAGES OF MEDIATION
WHAT ARE THE ADVANTAGES OF MEDIATION OVER LITIGATION?
- You will make the decisions. You, the individuals involved, are the ones who know your children and family best. You don’t have to leave it to a stranger in a courtroom to tell you how your family will work or how you will be raising your children.
- Mediation is much less expensive than fighting in court.
- Mediation is much less distressing than fighting in court.
- Mediation is much faster than working your way through the many complex steps of litigation.
IS MEDIATION ALWAYS SUCCESSFUL?
While no method of conflict resolution is always successful, the rates of success for mediation are better than those for litigation. This is partly because in mediation both parties “win”, whereas in litigation only one party “wins”. Success in mediation does require that both parties negotiate in good faith and want to resolve matters. For example, if someone would rather spend $50,000 punishing an ex-spouse than keeping most of that money in the family for the children’s benefit, then mediation may not succeed. If the parties have unrealistic expectations and each is convinced that the judge will see everything as that party sees it, they may both need to experience one or two court hearings before they are ready to negotiate in earnest. Such exposure often teaches people that there is no guaranteed fairness or justice in family court. Mediation allows you to maintain control over the process.