What is Mediation?

Mediation is a way for parties to work together with an impartial third person, the mediator, to achieve settlement of disputes.  The mediator does not act as a Judge or an advocate for one party, but rather promotes communication and options to find agreed resolutions.

The Mediation Process 

Mediation is a completely confidential process where no information about the mediation or the information discovered during the mediation may be disclosed by any party or the mediator, unless expressly authorized by the disclosing party.  The mediator may not disclose to either party information given in confidence by the other party unless expressly authorized to do so.  This requirement of confidentiality continues even after the mediation concludes, and may not be disclosed to anyone, including the Court.   

Who are mediators?

A mediator is a trained neutral professional, usually an attorney, who will help the parties to communicate with each other to try to reach a resolution of their dispute. Unlike arbitrators, they do not render binding decisions. Rather, mediators help facilitate discussion and guide the parties toward a mutually acceptable agreement.

Why Should You Mediate?

Why Mediate rather than Litigate?     

Litigation is extremely costly.  Parties can spend tens of thousands of dollars to try a case to conclusion.  Then, other people, a judge or jury, will make decisions that have long term consequences, and which may wind up being unsatisfactory to both parties.  Mediation gives the parties the opportunity to come to a “Win – Win” resolution, rather than “rolling the dice” and hoping for a satisfactory outcome.  In any event, the parties will have spent huge sums of money to try the case.  Mediation is the opportunity for the parties to work together to reach an agreement that they craft, and which avoids the cost and uncertainty of trial.  Finally, many Courts require mediation unless good cause is shown by a party why they should not be required to mediate.  This is a high standard since Courts have recognized the high success rate for mediations.

Mediation in Family Law Cases    

While mediation is beneficial in almost all cases, it is especially helpful to spouses and parents in family law cases.  Divorce and child custody cases are complex, confusing and frustrating for divorcing spouses or parents of children.  Litigation can put parties on a path where the differences which caused the separation are magnified during the court proceedings.  Hurt feelings and frustration can cause parties to act out and worsen the already damaged relationship.  Children are also susceptible to the unpleasant by products of a contested family law case since they see the anger, frustration and resentment which naturally result from an adversarial custody case. These aftereffects of an emotional and combative family law case can leave the entire family emotionally and financially damaged, which may take many years to recover from. In the alternative, mediation gives the parties the opportunity to improve communication and cooperation between the parties moving forward. This is especially important in cases involving children when parents must cooperate with each other in raising their children.

Additional Benefits from Mediation

Mediation is usually successful in settling cases, especially when attorney mediators are involved. Whether it’s a two-party dispute or a complex multi-party case, the mediation process often leads to a satisfactory outcome for all involved. Research shows that parties reach agreements in divorce mediations between 50% and 85% of the time. Parties who mediate their disputes reach resolution more quickly than litigating parties.  Research shows that parties who resolve their disputes through mediation are significantly more satisfied with the result than adversarial parties whose disputes are ultimately litigated and decided by a court.  

What to Expect During the Mediation

Generally, mediation begins with an overview of the process and any rules the mediator will follow, including neutrality and confidentiality. Sometimes the mediator meets with the parties separately and then together. If requested, the mediator will give each spouse a chance to make a statement. The mediation will then continue in a combination of joint and private sessions as the parties need. During private sessions, the mediator will meet alone with each side to discuss the overall progress and their individual concerns. The mediator will take proposals from one party to the other and work towards a final agreement.  At the end of the sessions, the mediator may bring the parties back together for a final meeting. If the parties have agreed on all or some issues, the mediator will help them put the agreement in writing. If they have not reached an agreement, the parties may return to litigation or may attempt further mediation if progress was made. If a mediation ends with a divorce settlement, the agreement may be filed with the court, and used as the basis to draft the final divorce decree.